FCAFC

Catchwords: PRACTICE AND PROCEDURE – application for leave to adduce further evidence – whether the Court should in its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) admit further evidence in the appeal – leave granted NATIVE TITLE – whether the certification function conferred on the Northern Land Council by s 203BE(1)(b) of the Native Title Act 1993 (Cth) was duly delegated by that representative body to the CEO under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – appeal allowed ...

Catchwords: COSTS – application for indemnity costs ­– where meritless appeal found to have been pursued for ulterior purpose of harassing the Respondent – whether costs order should be reduced by any amount recovered from Appellant’s lawyers PRACTICE AND PROCEDURE – where Appellant had given undertaking not to encumber or otherwise deal with property – whether the Court has power to extend undertaking ...

Catchwords: TRADE MARKS – appeal – deceptive similarity – whether primary judge erred in finding DOWN-N-OUT deceptively similar to IN-N-OUT BURGER – appeal dismissed TRADE MARKS – cross-appeal from finding that directors not liable as joint tortfeasors with company for trade mark infringement – cross-appeal allowed CONSUMER LAW – misleading or deceptive conduct – appeal from findings that appellants’ conduct amounted to representation of an association with respondent – appeal dismissed TORTS – passing off – appeal from finding that appellants’ conduct amounted to passing off – whether necessary for respondent to have a reputation in the form of business and customers in Australia to support claim – appeal dismissed TORTS – passing off – cross-appeal from finding that directors not liable as joint tortfeasors with company for passing off – cross-appeal allowed ...

Catchwords: INDUSTRIAL LAW – appeal against quantum of pecuniary penalties for contraventions of ss 230(1)(b) and (c) and 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) – whether primary judge erred in not ascribing a particular penalty to each contravention – whether primary judge misunderstood totality principle – whether primary judge erred in concluding that specific deterrence was relevant – whether primary judge erred in concluding certain contraventions were not part of single course of conduct – whether penalties manifestly excessive – where primary judge erred in assessing a single penalty for multiple contraventions – consideration of appropriate penalty in circumstances ...

Catchwords: PRACTICE AND PROCEDURE – where appellant ordered by primary judge to pay respondent’s costs on an indemnity basis – where appeal allowed in part on narrow question of construction – where appeal judgment did not address indemnity costs question – where parties were given opportunity to address question of costs but did not do so – where appellant has filed interlocutory application effectively to reopen the appeal in reliance upon the slip rule – slip rule inapplicable – interlocutory application dismissed with costs ...

Orders: 1. The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 2. The Notice of Objection to Competency filed on 20 August 2020 is upheld. 3. The proceeding is dismissed. 4. The application for orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) made at the hearing is refused. 5. The Applicant is to pay the costs of the First Respondent, either as taxed or agreed. Note: Entry of orders is dealt with in Rule...

Orders: 1. The appellant be granted an extension of time up to and including 17 June 2020 within which to file an application for leave to appeal, and leave to appeal. 2. The appeal be allowed. 3. The orders of the Court made on 18 May 2020 be set aside and the interlocutory application filed by the appellant on 9 April 2020 be remitted to the trial judge for reconsideration in accordance with the reasons of this Court. 4. The respondent pay the appellant’s costs of the appeal. Note: Entry of orders is...

Orders: 1. The appeal be allowed. 2. The cross-appeal be dismissed. 3. The declaration made on 13 October 2020 be set aside. 4. The parties are to provide a proposed form of order which substitutes the declaration made on 13 October 2020 to give effect to these reasons within 14 days. [Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.] ...

Catchwords: CONSUMER LAW – misleading or deceptive conduct – entry into a series of pastoral leases in reliance on representations – relief of statutory rescission sought under s 243 of Australian Consumer Law (ACL) – whether appellant suffered or was likely to suffer loss or damage because of contravening conduct under ss 236 and 237 of ACL – whether case was advanced before primary judge –loss or damage not confined to economic loss – entry into contractual arrangement constituted loss or damage in particular circumstances – appellant suffered disadvantage as a result of entry into contract – appeal allowed – matter remitted to primary judge on question of relief EQUITY – rescission – differences between rescission at common law and in equity and statutory relief in the nature of rescission ...

Catchwords: PRACTICE AND PROCEDURE – costs – appeal on a question of law from the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – where the applicant was substantially successful in the outcome of the appeal – where the applicant did not succeed on all grounds – whether to depart from ordinary rule that costs follow the event ...

Catchwords: MIGRATION – appeal from the Federal Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – cancellation of visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – whether jurisdictional error by the Tribunal by failing to consider evidence concerning the appellant’s behaviour while in prison – appeal dismissed. ...

Catchwords: MIGRATION – appeal from a decision of the Federal Court of Australia dismissing the appellant’s application for judicial review – where the Administrative Appeals Tribunal had affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the appellant’s visa on character grounds under Migration Act 1958 (Cth) s 501CA(4) – whether the primary judge erred in finding that the Tribunal gave active intellectual consideration to the submission that physical health was a factor that weighed in favour of revoking the decision – no error in inference by primary judge about the sufficiency of consideration by the Tribunal – appeal dismissed ...

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from Federal Court of Australia – creditor’s petition – whether deed of release should have been produced to primary judge – whether the debt underpinning creditor’s petition was still owing for the purposes of s 52(1)(a) of the Bankruptcy Act 1966 (Cth) – whether there was other sufficient cause under s 52(2)(b) of the Act for a sequestration order not to be made – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – protection visa – complementary protection criterion – whether the complementary protection provisions are capable of application where a visa applicant claims he or she will suffer psychological harm if returned to his or her home country on the basis of a past act in the home country ADMINISTRATIVE LAW – nature of a court order that a matter be remitted to the Administrative Appeals Tribunal “for determination according to law” – whether the Tribunal is bound to decide the matter in accordance with a legal conclusion expressed in the reasons for judgment of the court remitting the matter, irrespective of the correctness of that conclusion ...

Catchwords: MIGRATION – appeal from decision of single judge of the Federal Court of Australia – judicial review of Minister’s decision not to revoke cancellation of appellant’s absorbed person visa – appellant in immigration detention – appellant born in Cook Islands – appellant claims he is an Aboriginal Australian – appellant claims he is an Australian citizen – application for a writ of habeas corpus – whether appellant is lawfully detained under s 189(1) of the Migration Act 1958 (Cth) (Migration Act) – whether an officer held a reasonable suspicion that the appellant was an unlawful non-citizen at the time of trial – where no officer responsible for appellant’s detention at point of trial gave evidence – where no documentary evidence tendered that related to the state of mind of any detaining officer at point of trial – where no evidence tended to prove that any detaining officer had turned his or her mind to whether the appellant was an Aboriginal Australian – whether officer’s suspicion could be inferred – whether presumption of continuance applied – appeal allowed HIGH COURT AND FEDERAL COURT – original jurisdiction of Federal Court of Australia – whether Federal Court has authority and power to issue a writ of habeas corpus – s 23 of the Federal Court of Australia Act 1976 (Cth) – application of s 476A of the Migration Act – meaning of “jurisdiction in relation to a migration decision” – Federal Court has power to issue a writ of habeas corpus and such power has not been ousted or limited in any way by s 476A(1) of the Migration Act – appeal allowed ADMINISTRATIVE LAW – habeas corpus – history, nature and effect of remedy – onus of proof – whether legal onus of proving the unlawfulness of the appellant’s restraint borne by appellant – where primary judge applied a “shifting” onus of proof – whether appellant required to satisfy initial evidential onus in relation to claim of Aboriginality – Minister bears onus of proving the lawfulness of detention and must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers at the time of trial – appeal allowed CITIZENSHIP – appellant born in Cook Islands – appellant arrived in Australia at age 7 – appellant adopted in Queensland at age 8 – appellant’s birth registered in Queensland at the same time – s 31(2) of the Adoption of Children Act 1964 (Qld) deemed applicant’s “domicile of origin” to be domicile of adopters at time of adoption – whether applicant was “born in Australia” – appellant enrolled on Commonwealth electoral roll in 1986 – appellant voted in 1987 Australian federal election – appellant issued an Australian passport in 2017 – whether the appellant is an Australian citizen STATUTORY INTERPRETATION – “born in Australia” – s 10(1) of Australian Citizenship Act 1948 (Cth) – whether phrase “born in Australia” is limited to physical birth within the geographical territory of Australia EVIDENCE – hearsay – business records – s 69(3) of the Evidence Act 1995 (Cth) – whether records of Department of Home Affairs were prepared or obtained for the purpose of conducting, or in contemplation of, an Australian proceeding – phrase “in contemplation of” refers to the person who prepared the representation or who obtained it – the officers whose views are recorded in the documents were unlikely to have contemplated that proceedings about the appellant’s detention were reasonably probable ...

Catchwords: REPRESENTATIVE PROCEEDINGS – application for leave to appeal – industrial class action – claims that group members were employees of respondent – where primary judge dismissed application for orders under ss 33C and 33N of the Federal Court of Australia Act 1976 (Cth) that proceeding not validly commenced as a representative proceeding, or alternatively that it not continue as a representative proceeding – whether claims of group members did not give rise to substantial common issue of fact or law – whether claim that group members were employees must be determined on individual-by-individual basis and thus no common issue raised – where primary judge satisfied of two common questions – whether proceeding ought to have been declassed because most if not all common issues not capable of determination on common basis – whether representative proceeding would provide efficient and effective means of dealing with claims of group members – whether otherwise inappropriate that claims be pursued as representative proceeding – consideration of relevant principles – primary judgment not attended by doubt – no substantial injustice – application dismissed ...

Catchwords: INDUSTRIAL LAW – statutory construction – employees stood down under s 524(1) of the Fair Work Act 2009 (Cth) and under enterprise agreement because of stoppage of work for which employer could not reasonably be held responsible – exigencies of the COVID-19 pandemic – paid personal/carer’s leave or compassionate leave under ss 96 or 106 of the Act – whether employee not taken to be stood down under ss 524(3) and 525 if taking personal/carer’s or compassionate leave during period of stand down – whether taking of personal/carer’s or compassionate leave authorised by employer or otherwise authorises employee to be absent form work pursuant to s 525 –Held: employees stood down not entitled to personal/carer’s leave or compassionate leave during stand down period – appeal dismissed ...

Catchwords: INDUSTRIAL LAW – interpretation of industrial agreements – whether Full Bench of the Fair Work Commission made jurisdictional error in interpretation of enterprise agreement and modern award in holding that, read together, they contained a consultation term within the meaning of s 205 of the Fair Work Act 2009 (Cth) – where enterprise agreement and modern award did not contain all elements of consultation term required in s 205 – whether model consultation term prescribed pursuant to s 205(2) to be read to supplement or supplant existing but deficient consultation provisions in enterprise agreement and modern award – where s 205(2) provided model consultation term prescribed by reg 2.09 of the Fair Work Regulations deemed to be term of the enterprise agreement – Held: model consultation term applied to exclusion of insufficient and defective terms dealing with consultation in the enterprise agreement and modern award ...

Catchwords: MIGRATION – appeal from dismissal of application for judicial review from decision of the Administrative Appeals Tribunal affirming decision of Minister’s delegate not to revoke the mandatory cancellation of the appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – whether primary judge erred in failing to find jurisdictional error by Tribunal in failing to consider effect of non-revocation on appellant’s adult step-daughter – whether findings in relation to step-daughter subsumed in findings of greater generality ...

Catchwords: MIGRATION – appeal from dismissal of judicial review application in respect of decision by the Minister to refuse the appellant’s protection visa under s 501A(3) of the Migration Act 1958 (Cth) (Act) – whether the primary judge erred in rejecting the appellant’s claim that the Minister was precluded from relying on s 501A(3) of the Act as a result of Australia’s international non-refoulement obligations – whether the primary judge erred in rejecting the appellant’s claim that the Minister was precluded from refusing to grant the appellant a protection visa under s 501A(3) because the appellant met the complementary protection criterion in s 36(2)(aa) of the Act – whether the primary judged erred in rejecting the appellant’s claim that her detention was unlawful under Art 9 of the International Covenant on Civil and Political Rights – whether the primary judge erred in rejecting the appellant’s contention that the Minister had not taken into account the issue of indefinite detention – appeal dismissed with costs PRACTICE AND PROCEDURE – application for disqualification of judge on the basis of apprehended bias – whether hypothetical lay observer might apprehend that judge might not bring an impartial mind to the resolution of the question to be decided – whether logical connection between factor said to give rise to the apprehension of bias and the issues to be determined on appeal – application for disqualification dismissed ...

Catchwords: MIGRATION – appeal from decision of single judge dismissing application for judicial review of decision of Administrative Appeals Tribunal – whether primary judge should have found Tribunal failed to take relevant considerations into account, made findings in the absence of evidence, or failed to afford procedural fairness – no issue of principle – no error established ...

Catchwords: COMMUNICATIONS LAW – whether New Payphone Cabinets are “low-impact facilities” within the meaning of clause 6 of Sch 3 to the Telecommunications Act 1997 (Cth) exempt from planning laws – where Telstra sought planning approval to display commercial advertising on New Payphone Cabinets – where New Payphone Cabinets to be installed only after planning approval to display commercial advertising obtained – whether primary judge erred in concluding that the New Payphone Cabinets are “low-impact facilities” – appeal allowed with costs ...

Catchwords: MIGRATION – appeal from judgment dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal affirmed a decision to cancel the appellant’s visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider properly the best interests of the child in accordance with cl 9.2(4) of Direction 79 issued under s 499 of the Migration Act ...

Catchwords: INDUSTRIAL LAW – construction of enterprise agreement project working hours – hours for which an employee should be paid – dispute as to when project working hours ended – whether on departure from crib hut in particular location at which day’s work takes place or on exit through access gates to whole site INDUSTRIAL LAW – principles of construction PRACTICE AND PROCEDURE – recusal – apprehension of bias – whether prior professional relationship between judge and party should disqualify the former from sitting – whether bias is reasonably apprehended – recusal not appropriate ...

Catchwords: REPRESENTATIVE PROCEEDINGS – whether the Court has power to make an order of security for costs sought against funder in industrial class action – whether the Court should exercise its discretion to make such an order INDUSTRIAL LAW – purpose of s 570 of the Fair Work Act 2009 (Cth) - importance of “no costs” jurisdiction brought about by s 570 to questions of power and discretion to award security for costs COSTS – consideration of the character of a security for costs order – consideration of the consequences of non-compliance with such an order ...

Catchwords: INDUSTRIAL LAW – appeal from judgment dismissing an application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – internal membership demarcation dispute between divisions of the union involving proper construction of union rules – appeal allowed. UNION RULES – principles of construction – rules amended from time to time – internal inconsistencies and redundancies – whether regard may be had to deleted or redundant rules. ...

Catchwords: INDUSTRIAL LAW – where head contractor failed to comply with request of industrial association to provide additional amenities – whether head contractor “engaged in industrial activity” within the meaning of s 347(b)(iv) of the Fair Work Act 2009 (Cth) – whether s 347(b)(iv) extends to lawful requests or directions of an industrial association which are unrelated to matters concerning freedom of association – whether industrial activity confined to rights of participation – whether industrial association engaged in “adverse action” so as to give rise to s 346(b) – whether industrial association coerced head contractor to engage in industrial activity contrary to s 348 STATUTORY CONSTRUCTION – the need to construe a provision in its context and to give effect to objects and purposes – the circumstances in which reference may be made to extrinsic materials, including an explanatory memorandum ...

Catchwords: ADMINISTRATIVE LAW – appeal from decision of primary judge dismissing application for judicial review of decision of Australian Community Pharmacy Authority – decision to recommend that application for new pharmacy not be approved – meaning of “supermarket” under National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) – whether primary judge erred in construing meaning of “supermarket” – appeal allowed ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision by the Immigration Assessment Authority (IAA) – whether the primary judge erred by failing to find that the IAA engaged in irrational or illogical reasoning in making its findings as to the credibility or probity of the appellant’s evidence – whether the primary judge erred by failing to find that the IAA failed to apply the appropriate predictive test in relation to whether there is a real chance the appellant will face serious harm on return to Pakistan – whether the primary judge erred in failing to provide adequate reasons for the dismissal of the appellant’s application for judicial review – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal not to revoke cancellation of applicant’s visa – material submitted by partner of applicant outside time period prescribed by s 500(6J) of Migration Act 1958 (Cth) – whether decision of Tribunal not to adjourn review hearing denied applicant procedural fairness or was legally unreasonable – whether Tribunal misunderstood its task by failing to correctly construe procedural fairness provisions in Administrative Appeals Tribunal Act 1975 (Cth) – consideration of whether alleged errors material to outcome of Tribunal’s review – appeal dismissed ...

Catchwords: EVIDENCE – privilege against self-incrimination – where disclosure order in connection with freezing orders required disclosure of worldwide assets – where respondent objected to disclosure of certain information on the basis that it may tend to incriminate and filed a privilege affidavit under s 128A(2) of the Evidence Act 1995 (Cth) (Evidence Act) – where respondent applied for return of privilege affidavit – construction of s 128A of the Evidence Act – onus of proof under s 128A(6) of the Evidence Act – whether primary judge erred in finding that the interests of justice did not require disclosure of the information in the privilege affidavit – interests of justice did not require disclosure ...

Catchwords: MIGRATION – appeal from Federal Circuit Court – judicial review of an international treaty obligations assessment (ITOA) undertaken in respect of the appellant – whether the appellant was afforded procedural fairness in the ITOA process – where documents containing country information were not put to the appellant – no denial of procedural fairness – whether ITOA assessor applied the wrong standard – correct inference to determine the content of the instructions given to the ITOA assessor – ITOA assessor applied the correct standard – appeal dismissed. ...

Catchwords: INDUSTRIAL LAW - appeal from decision of primary judge dismissing application for declarations that respondents contravened s 346(b) and s 348 of the Fair Work Act 2009 (Cth) - whether primary judge erred in approach to construction of s 346 - whether threat of adverse of action - consideration of when a threat to take action will be adverse action - whether primary judge erred in finding that presumption in s 361 does not apply to allegations that a person threatened to take action with intent to coerce - appeal dismissed INDUSTRIAL LAW - application by appellant for leave to advance new case on appeal - consideration of nature of conduct and intent required to establish coercion under s 348 - where appellant sought to depart from case run before primary judge - leave refused ...

Catchwords: TAXATION – allowable deductions – where the taxpayer is the scheme administrator of the Murrindindi Bushfire Class Action Settlement Scheme – whether the costs and expenses incurred by the taxpayer in administering the Scheme are deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) – whether the costs were incurred in gaining or producing assessable income – whether the costs were incurred in carrying on a business – whether the costs were an outgoing of capital or of a capital nature – appeal dismissed ...

Catchwords: MIGRATION – appeal from the Federal Circuit Court – whether the Tribunal erred by failing to make a finding as to the place where the appellant was likely to return – consideration of the concept of a “home area” and the internal relocation principle in applying s 36(2B)(a) of the Migration Act 1958 (Cth) – Tribunal failed to discharge its statutory function – appeal allowed. ...

Catchwords: MIGRATION – application for leave to appeal from a decision of a single judge of the Federal Court of Australia – applicant was refused an extension of time to apply for judicial review of the respondent’s decision to cancel his visa pursuant to s 501(3) of the Migration Act 1958 (Cth) – failure to appear at the hearing – application for leave to appeal dismissed in default of appearance ...

Catchwords: COSTS — where the petitioners sought orders pursuant to s 360(4) of the Commonwealth Electoral Act 1918 (Cth) — whether the Commonwealth should pay the costs of the first respondent in VID 1019 of 2019 — consideration of public importance and public benefit of petitions ...

Catchwords: MIGRATION – appellant’s visa cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth) – cancellation decision affirmed by Administrative Appeals Tribunal – appeal from decision of single judge dismissing application for judicial review of Tribunal’s decision – leave sought to rely on grounds not raised below – meaning of “offences involving violence” ...

Catchwords: CORPORATIONS – deed of company arrangement – application to terminate deed of company arrangement pursuant to s 445D(1) of the Corporations Act 2001 (Cth) – where the primary judge refused to terminate deed of company arrangement – whether primary judge erred in finding that there was not a likely prospect of the creditors of the company receiving a better outcome in the liquidation of the company – whether the primary judge erred in making certain factual findings – whether the primary judge erred in the exercise of his discretion PRACTICE AND PROCEDURE – new point on appeal – where the appellants sought to rely on certain Australian cases that had not been referred to at first instance to support the proposition that the requirement of reciprocity (for recognition of an Australian judgment in China) would be satisfied – whether the appellants’ submission amounted to a new point on appeal – whether the appellants should have leave to make the submission ...

Catchwords: ADMINISTRATIVE LAW – application for judicial review – where writ of certiorari sought – jurisdictional error – Full Bench of the Fair Work Commission alleged to have misconceived its appellate function – could only set aside decision of Deputy President if satisfied there was an error as identified in House v The King – Deputy President’s conclusion that meme constituted valid basis for dismissal not reasonably open as conclusion was outside the legally permissible range of conclusions – no error by Full Bench of the Fair Work Commission – where alleged failure to consider question of fact – s 400(2) of the Fair Work Act 2009 (Cth) is a basal pre-condition to an exercise of power – no error by Full Bench of the Fair Work Commission – application dismissed ...

Catchwords: PATENTS – patent application for a digital advertising system and method – claimed invention is implemented using computer technology – whether a manner of manufacture within the meaning of s 18(1)(a) of the Patents Act 1990 (Cth) – whether primary judge erred in finding that the resolution of the proceedings below lay “largely in the realm of facts” – whether primary judge erred in accepting expert evidence as determinative of whether the claimed invention was a manner of manufacture – approach to characterising the claimed invention – appeal allowed ...

Catchwords: INDUSTRIAL LAW – application by an employer for declarations that an employee could not claim the National Employment Standards entitlements to paid annual leave, personal/carer’s leave and compassionate leave because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (the FW Act), and could not claim the corresponding entitlements under the applicable enterprise agreement because he was a “Casual Field Team Member” (casual FTM) – consideration of the character of the employee’s employment – consideration of the expression “firm advance commitment” used in some authorities in relation to casual employment – employee not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement. RESTITUTION – employer paid employee at a flat hourly rate in accordance with contracts of employment, which the employer claimed included an identifiable casual loading – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to restitution of the casual loading as the employee was unjustly enriched – employer sought restitution on the grounds of mistake and failure of consideration – restitution not available. INDUSTRIAL LAW – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to bring into account amounts it paid to him as remuneration against the entitlements he claimed – whether the employer was entitled to have some portion of its payments of remuneration to the employee brought into account in discharge of its obligations to pay the entitlements he claimed – consideration of when an employer’s payments made under contract to an employee may operate to discharge its statutory obligations to the employee – employer’s payments of wages were not for the purpose of discharging statutory obligations to give the employee paid leave entitlements – consideration of reg 2.03A of the Fair Work Regulations 2009 (Cth) – employer not entitled to bring amounts into account. ...

Catchwords: INDUSTRIAL LAW – protected industrial action – contravention of an order – power of Court to set aside retrospectively PRACTICE AND PROCEDURE – orders nunc pro tunc – power of Court to make – interference with a substantive right PRACTICE AND PROCEDURE – leave to appeal – notices of contention ...

Catchwords: INDUSTRIAL LAW – Where applicant applied to this Court seeking substantially the same relief on substantially the same grounds as the applicant in O’Sullivan v Commissioner of Police [2019] FCA 1367 whose case was dismissed – Where penalties imposed on applicant by a delegate of the Commissioner of Australian Federal Police (AFP) – Where penalties included a reduction in salary band classification and pay point – Where reduction in remuneration effected by way of a clause in the AFP Enterprise Agreement –Whether s 69B of the Australian Federal Police Act 1979 (Cth) excludes the operation of that part of the AFP Enterprise Agreement – Application dismissed with costs ...

Catchwords: MIGRATION – appeal from orders dismissing application for judicial review of a migration decision – respondent Minister refusing to grant the appellant a visa in the exercise of the power conferred by s 501(1) of the Migration Act 1958 (Cth) – whether appellant made a claim that his wife and child would be at risk of harm if the visa was refused so as to give rise to an obligation in the Minister to consider it – whether Minister in fact considered such a claim – whether such failure amounted to jurisdictional error in the circumstance of the case – whether breach of rules of procedural fairness – whether constructive failure on the part of the Minister to exercise the jurisdiction conferred by s 501(1) ...

Catchwords: MIGRATION – appeal against primary Judge’s judgment refusing relief under s 39B of the Judiciary Act 1903 (Cth) with respect to Federal Circuit Court of Australia (“FCC”) finding that it lacked jurisdiction to review validity of notice issued under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) – whether primary Judge erred in refusing relief – whether the FCC has jurisdiction under s 476 of the Act – whether determination under s 501CA(3) constituted a “migration decision” – consideration of other matters relied upon by the FCC when holding that the appellant’s application for an extension of time should be rejected – whether consideration of those matters was a proper exercise of the FCC’s jurisdiction ...

Catchwords: ADMINISTRATIVE LAW - appeal from decision of primary judge dismissing appeal from decision of the Administrative Appeals Tribunal - where Tribunal affirmed decisions of Information Commissioner that documents exempt from production under the Freedom of Information Act 1982 (Cth) - whether error in approach of primary judge to statutory construction of s 86-9 of Aged Care Act 1997 (Cth) - whether Commissioner could exercise powers conferred by s 55K(2) of FOI Act to release documents - appeal dismissed ...

Catchwords: HUMAN RIGHTS - National Disability Insurance Scheme - funding of supports and services - where respondent an approved participant under the Scheme - where decision‑maker declined request for funding of claimed support - where Administrative Appeals Tribunal found claimed support of a specially trained sex therapist was a reasonable and necessary support - appeal from decision of Tribunal - whether Tribunal denied applicant procedural fairness by manner in which it described and understood the nature of claimed support requested by respondent -whether Tribunal properly approached question as to whether claimed support reasonable and necessary - application of s 34 of National Disability Insurance Scheme Act 2013 (Cth) - whether Tribunal's findings of fact supported by evidence ...

Catchwords: WORKERS’ COMPENSATION — Commonwealth employees — appeal from decision of Administrative Appeals Tribunal to affirm determination by Comcare to refuse claim for compensation for injury allegedly due to bullying and harassment at work over five-year period — where claimed condition found to be adjustment disorder with depressed and anxious mood — where employee’s incapacity for work followed refusal of her request to reclassify sick leave already taken — where Administrative Appeals Tribunal found that the process of decision-making and the communication of the decision constituted reasonable administrative action taken in a reasonable manner with respect to the employee’s employment and found that the employee would not have suffered from the disorder had it not been for that action and was not therefore an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1998 (Cth) — whether notice of appeal raised questions of law — whether Tribunal erred by failing to fix earliest date disorder was diagnosable — whether Tribunal conflated incapacity with impairment — whether Tribunal failed to correctly apply Comcare v Martin (2016) 258 CLR 467 — whether Tribunal failed to comply with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) by providing inadequate reasons for three of its findings ...

Catchwords: COMPETITION – proposed acquisition of the Acacia Ridge Terminal in Brisbane – alleged contravention of s 50 of the Competition and Consumer Act 2010 (Cth) – market definition – economic tests for defining a price discrimination market – whether conduct likely to have the effect of substantially lessening competition in a market – meaning of “likely” – standard of proof to be applied to predictions about future facts and circumstances – vertical merger – ability and incentive to engage in price discrimination – whether raising barriers to entry sufficient to establish a substantial lessening of competition – likelihood of new entry – new entry a mere possibility UNDERTAKING – whether undertaking to the Court proffered by acquirer should be accepted – whether Court has power to accept the undertaking – whether power arises under the Federal Court of Australia Act 1976 (Cth) or only under s 80 of the Competition and Consumer Act 2010 (Cth) – whether acceptance of the undertaking would infringe Chapter III of the Constitution by attempting to confer a non-judicial power on the Federal Court ­– where undertaking is outside of the relief sought by the Australian Competition and Consumer Commission – whether undertaking is sufficiently certain as to be enforceable – whether primary judge erred in fact or principle in accepting undertaking ...

Catchwords: JUDICIAL REVIEW – application for judicial review of a decision of the first respondent to issue an arrest warrant under s 31 of the Australian Crime Commission Act 2002 (Cth) (the Act) – where applicant claims that the arrest warrant is invalid – whether the first respondent had reasonable grounds to believe the applicant was likely to commit an offence against s 30(1)(b) of the Act – where applicant claims the second, third and fourth respondents failed to comply with their duty on an ex parte application to disclose all material facts – where applicant claims that the first respondent took into account evidence which was not on oath in deciding to issue the warrant such that the warrant was issued in breach of s 31(1) of the Act – interpretation of s 30(1) CONSTITUTIONAL LAW – where applicant claims s 31 of the Act is invalid because it purports to confer a duty, power and/or function on judges of the Federal Court of Australia, acting as persona designata, which is incompatible with their commissions as judges of the Court and/or with the proper performance of their judicial functions as judges of the Court ...

Catchwords: COSTS – exercise of costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) – whether any proper basis exists to depart from usual order that costs follow the event – where appellant succeeded on a third of the appeal grounds – where that success was of a minor practical nature and the primary judge’s orders were not disturbed ...

Catchwords: MIGRATION – appeal from orders made in the Federal Circuit Court of Australia quashing a decision by the Administrative Appeals Tribunal (Tribunal) – where the Tribunal had affirmed a decision of a delegate of the appellant refusing the first respondent a protection visa pursuant to s 91WA of the Migration Act 1958 (Cth) – where the first respondent had claimed to be a Sri Lankan citizen in his visa application – where the Tribunal found that the first respondent had provided bogus documents as evidence of his identity, nationality or citizenship without a reasonable excuse for doing so – where the Tribunal found that the first respondent was a citizen of the United Kingdom (UK) – where the primary judge found that jurisdictional error was established by the Tribunal’s failure to make an obvious inquiry of UK authorities as to whether the first respondent’s UK passport was genuine or had been fraudulently obtained – whether the primary judge erred in finding that the Tribunal erred by failing to make that inquiry – whether that inquiry was obvious – appeal allowed ...

Catchwords: TAXATION – application for leave to appeal – where primary judge made interlocutory orders requiring Commissioner of Taxation, a non-party, to provide to the plaintiffs and the Court a redacted copy of a settlement deed – where Commissioner contended that the entirety of the settlement deed was “protected information” as defined in s 355-30 of Sch 1 to the Taxation Administration Act 1953 (Cth) – where Commissioner contended that s 355-205 precluded the Court from ordering production or disclosure of the settlement deed, even in partially redacted form – where orders requiring production stayed pending determination of the application for leave to appeal PRACTICE AND PROCEDURE – application for leave to appeal interlocutory orders of primary judge – whether the grant of leave would be consistent with overarching purpose and prejudice would be occasioned if leave refused – orders made adjectival to a hearing which has completed – consideration of relevant principles – application dismissed ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Immigration Assessment Authority – where appellant family with children claimed they would be detained as failed asylum seekers upon return to Sri Lanka – where Authority found children would not be detained – whether finding had any basis in evidence – appeal allowed ...

Catchwords: NATIVE TITLE - consideration of questions referred to the Full Court - where consent determination made recognising non-exclusive native title rights held by two groups over same area - whether Court has power under Native Title Act 1993 (Cth) to determine more than one prescribed body corporate to perform functions given to PBCs - whether Court has discretion to determine that there should only be one PBC where each group nominates separate PBCs - consideration of practical issues arising where overlapping determinations of native title are proposed to be made by consent ...

Catchwords: MIGRATION - appeals from decisions of Federal Circuit Court dismissing applications for judicial review of decision of the Immigration Assessment Authority affirming Minister's decisions to refuse appellants' applications for protection visa - where Authority decided that appellants could find safe refuge in home country but outside habitual place of residence - consideration of proper construction of s 5J(1)(c) of Migration Act 1958 (Cth) - whether s 5J(1)(c) qualified by requirement of reasonableness - appeals dismissed ...

Catchwords: MIGRATION – appeal from orders of a judge of the Federal Court of Australia dismissing an application for judicial review – where the respondent Minister cancelled a visa under s 501(3) of the Migration Act 1958 (Cth) –whether primary judge erred in finding that the Minister did not misapprehend that he could not seek further information before making a visa cancellation decision – where the Minister made an admission in submissions that he “proceeded on the basis of the alleged misapprehension” –whether the primary judge erred in holding (by reference to the decision in Burgess v Assistant Minister for Home Affairs (2019) 371 ALR 598) that the reasoning in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 concerning the construction of s 501BA of the Migration Act applies to s 501(3) – held – appeal dismissed – Burgess represents the law and the primary judge did not err in finding the Ibrahim construction of s 501BA applies to s 501(3) – the primary judge did not err in giving greater weight to the Minister’s reasons than to the admission – had the Minister proceeded on the misapprehension it would have been material ...

Catchwords: CONTRACTS – construction of agreements relating to the restructure of the Kraft Foods Inc group in October 2012 – where two independent public companies were created: a global snacks business (SnackCo) and a North American grocery business (GroceryCo) – where certain intellectual property rights were allocated to the intellectual property company of the SnackCo group (SnackCo IPCo) and certain such rights were allocated to the intellectual property company of the GroceryCo group (GroceryCo IPCo) – whether rights in relation to certain get-up used by an Australian company for peanut butter products manufactured and sold in Australia (the Peanut Butter Trade Dress) were allocated to SnackCo IPCo or GroceryCo IPCo – construction of various definitions used in the agreements – consideration of commercial purpose or object of the agreements CONSUMER LAW – misleading or deceptive conduct – whether either party engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law (or passing off) by applying the Peanut Butter Trade Dress to peanut butter products – whether the respondent engaged in misleading or deceptive conduct in relation to its television and radio advertisements – whether the appellants engaged in misleading or deceptive conduct in a press release and by use of the slogan “Loved since 1935” TRADE MARKS – infringement – where primary judge found that the respondent had infringed the appellants’ trade marks by supplying certain peanut butter products in ‘shippers’ bearing the Kraft hexagon logo – whether the respondent used the Kraft hexagon logo trade mark (or the “Kraft” trade mark) “as a trade mark” within the meaning of s 120(1) of the Trade Marks Act 1995 (Cth) ...

Catchwords: NATIVE TITLE – appeal from decision of the National Native Title Tribunal (the Tribunal) rejecting an application made pursuant to s 32(3) of the Native Title Act 1993 (Cth) (the NT Act) on the basis that it had not been made by the person entitled under the NT Act to make it – application lodged by the former registered native title claimants and not the registered native title body corporate (RNTBC) – whether the Tribunal’s acceptance of the application under s 77 of the NT Act enlivened its jurisdiction – whether on the factual findings it could be concluded that it was the RNTBC which had lodged the objection – whether application was nevertheless “sufficient to satisfy the statutory purpose” – consideration of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 – operation of s 109 of the NT Act – appeal dismissed ...

Catchwords: NEGLIGENCE – appeal by way of rehearing – where the primary judge dismissed the appellant’s applications against the respondent solicitors seeking damages for alleged professional negligence – duty of care owed by the first to fourth respondent solicitors and counsel in providing legal advice to the appellant nursing home operator – where the appellant, in respect of its Derwent Court nursing home in Hobart, faced Commonwealth government sanctions and the revocation of its approval as a Commonwealth funded nursing home operator under the National Health Act 1953 (Cth), and sought advice from the first to fourth respondent solicitors and counsel – errors by primary judge – Full Court to decide for itself – whether the first to third respondents and counsel were negligent in failing to advise the appellant that it had grounds to challenge a decision of a delegate of the Minister to impose financial sanctions pursuant to s 45E of the National Health Act – whether the appellant would have acted on such advice – whether the first to fourth respondents and counsel were negligent in failing to advise the appellant of the enactment of the Aged Care Act 1997 (Cth) and the transitional provisions in the Aged Care (Consequential Provisions) Act 1997 (Cth) – whether the first to fourth respondents and counsel were negligent in failing to advise the appellant of the significance of that legislation to a proposed decision by a delegate of the Minister to revoke its nursing home approval pursuant to s 44(2) of the National Health Act – what advice did the exercise of reasonable care require – first to fourth respondents and counsel negligent in failing to identify new legislation – whether, if reasonable and prudent advice given, the appellant would have become an approved provider of aged care services upon the commencement of the Aged Care Act – characterisation of the appellant’s claim as one for its lost opportunity to become an approved provider under the new legislation and to conduct its nursing home business at new premises, or alternatively, to sell its Commonwealth approvals to another approved provider – formulation of the content of reasonable and prudent advice – causation involving proof of a past hypothetical in which circumstantial evidence was the dominant consideration, assessed prospectively and without the benefit of hindsight, on the balance on probabilities – finding that even if the appellant had been given reasonable and prudent advice by its solicitors and counsel, the appellant had not established that it would have become an approved provider of aged care services upon the commencement of the Aged Care Act and thereby have avoided the damage which it claimed – appeal dismissed. APPEAL – nature of appellate review – principles that guide appellate review of findings of fact – whether error of primary judge must be demonstrated as wrong by “incontrovertible facts or uncontested testimony” – statements of principle in appellate judgments should not be treated as if they were provisions of a statute – whether error if findings open on the evidence – duty of appellate Court – consideration of Devries v Australian National Railways Commission, Fox v Percy and Robinson Helicopter Company Inc v McDermott ...

Catchwords: CONSTITUTIONAL LAW – Judicial power of the Commonwealth – Australian Financial Complaints Authority (AFCA) given powers to determine superannuation complaints – AFCA determined that superannuation trustee’s decision not to refund money to member operated unreasonably or unfairly in its operation in relation to that member – decision alleged to be or to involve an impermissible exercise of judicial power because it was “in effect” a determination of existing rights of the parties in relation to the operation of s 1017B of the Corporations Act – AFCA’s determination did not involve any determination of rights under s 1017B – entitlement of non-judicial body to determine rights of parties as a step “along the way” to a non-judicial decision discussed – ability of non-judicial body to determine rights of parties where other aspects of judicial power not present – application dismissed ...

Catchwords: PATENTS ? whether primary judge erred in finding as to the priority date of amended claim ? where priority date deferred ? where invention as claimed in amended claim anticipated by the exploitation of accused articles before the deferred priority date PRACTICE AND PROCEDURE ? application for leave to appeal where primary proceeding dismissed summarily under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ? leave refused ...

Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216 ...

Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216 ...

Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216 ...

Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216 ...

Catchwords: INTELLECTUAL PROPERTY – application for leave to appeal – where primary judge dismissed an appeal from a decision of the delegate of the Commissioner of Patents revoking an innovation patent – where alleged invention was a method by which an organisation engages with an innovation service provider to innovate – whether alleged invention is a “manner of manufacture” within the meaning of Statute of Monopolies 1623 (UK) s 6 PRACTICE AND PROCEDURE – application to adduce fresh evidence – application refused ...

Catchwords: MIGRATION – refugees – protection visa – refusal to grant protection visa under section 65 of Migration Act 1958 (Cth) - Administrative Appeals Tribunal – review by Tribunal under Pt 7 of Migration Act 1958 (Cth) – appeal from Federal Circuit Court of Australia – applicants’ claim for protection grounded on claim to be member of particular social group, being homosexuals in Pakistan – appeals allowed – matters remitted to the Administrative Appeals Tribunal ADMINISTRATIVE LAW – administrative law – judicial review – jurisdictional error – whether decision by Tribunal unreasonable, irrational or illogical – whether certain factual findings made by the Tribunal lacked an evident and intelligible justification or the reasoning was not open on the evidence or lacked a logical connection between the evidence and the conclusions drawn – applicable principles – whether evidence of particular facts rationally probative of a fact in issue – materiality of reasoning in error – writ of certiorari issued – writ of mandamus issued ...

Catchwords: INDUSTRIAL LAW – appeal against judgment of the South Australian Employment Court (SAEC) declaring that the Appellant had contravened s 323 of the Fair Work Act 2009 (Cth) in three respects – whether the findings of a SAEC Deputy President regarding the Respondent’s starting times were in error – whether the Appellant was denied procedural fairness because an alternative claim advanced and upheld concerning the Respondent’s meal breaks had not been pleaded – whether a finding that the Appellant pay $67.13 together with superannuation and interest in respect of unpaid overtime was in error – consideration of whether the SAEC constituted by the Deputy President was a Court of summary jurisdiction – appeal dismissed. ...

Catchwords: CORPORATIONS – consideration of whether the primary judge erred in concluding that the appellants, Mr and Mrs Cassimatis, engaged in conduct in contravention of s 180(1) of the Corporations Act 2001 (Cth) (the “Act”) – consideration of the construction of the text of s 180(1) and the history of the development of that section of the Act – consideration of the extent to which the appellants exercised power and control over the management of the affairs of the corporation, Storm Financial Pty Ltd – consideration of the “corporation’s circumstances”, the “office occupied” by each appellant and the “responsibilities” within the corporation of each appellant for the purposes of the integers of s 180(1) of the Act CORPORATIONS – consideration of the contraventions, as found by the primary judge, by the corporation of s 945A(1)(b) and (c) – consideration of the contraventions of s 912A(1)(a) and s 912A(1)(c) of the Act – consideration of the relationship between conduct on the part of the appellants giving rise to the contravention of those sections and the liability of the appellants arising under s 180(1) of the Act – consideration of the distinction between the accessorial liability of a person arising under s 79 of the Act and a liability arising in a director or officer of a corporation by reason of conduct in contravention of s 180(1) of the Act – consideration of the notion of a “stepping stone” to liability on the part of a director of officer of the corporation – consideration generally of the relationship between contended contraventions of s 180(1) by the appellants and contraventions by the corporation of particular provisions of the Act CORPORATIONS – consideration of the integers of s 945A(1)(b) and (c) of the Act – consideration of contraventions by the corporation of those provisions of the Act – consideration of the relationship between contraventions of those provisions of the Act by the corporation and a liability arising in the appellants by reason of conduct engaged in by the appellants in contravention of s 180(1) of the Act ...

Catchwords: COSTS – whether an order for costs ought to be made in a fair work proceeding – application of s 570 of the Fair Work Act 2009 (Cth) – whether a party’s unreasonable act or omission caused the other party to incur costs – whether withdrawing contentions at the time of the hearing amounts to an unreasonable act – whether it was unreasonable for the appellants to reject an offer of compromise more favourable than what was ultimately the adjudicated result – whether the failure to pay a penalty amount imposed by the court below was an unreasonable omission – application dismissed – no order for costs ...

Catchwords: INDUSTRIAL LAW – application for prerogative and declaratory relief in respect of decisions of the Fair Work Commission dismissing an application pursuant to s 217 of the Fair Work Act 2009 (Cth) for the variation of an enterprise agreement – alleged ambiguity or uncertainty in the agreement – whether decision of a Deputy President affected by jurisdictional error by reason of the Deputy President treating the application as requiring an interpretation of the agreement and by treating the terms “ambiguity” and “uncertainty” as synonyms – whether the decision of the Full Bench to affirm the Deputy President’s decision affected by jurisdictional error. Held: both decisions affected by jurisdictional error. ...

Catchwords: ADMIRALTY – demise charter – construction – whether demise charter validly terminated – where demise charter for the purpose of joint venture agreement – where joint venture agreement validly terminated CONTRACTS – express duties of good faith and cooperation – whether breach of these duties precluded a party from issuing a notice to remedy breach - whether party took advantage of its own breach – in circumstances where primary judge found no breach by party issuing the breach notice. CONTRACTS – notice to remedy breach ­–where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future” CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms ­– whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound – in circumstances where common law beach of joint venture not pleaded at trial. EQUITY – joint venture – whether equity will permit a party to retain the benefit of another party’s contribution to the endeavour – whether party entitled to restitutionary remedy or fair remuneration – in circumstances where contract was validly terminated ...

Catchwords: COSTS – exercise of costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) – appellant/cross-respondent succeeded on one ground of appeal – respondent/cross-appellant unsuccessful on each ground of cross-appeal – desirability of avoiding future disputes in allocation of items of costs – discretionary apportionment of costs ...

Catchwords: DEFAMATION — appeal from orders of the primary judge that verdict and judgment be entered in favour of the respondent against the appellants in the amount of $280,000 — where the primary judge found that the matter complained of carried three of four imputations alleged by the respondent — where the appellants raised the defence of qualified privilege pursuant to s 30 of the Defamation Act 1995 (NSW) — where the primary judge rejected the contention that the appellants’ conduct in publishing the article was reasonable in the circumstances DEFAMATION — whether the primary judge erred in holding that the appellants had failed to establish that their conduct in publishing the article was reasonable in the circumstances — whether the primary judge erred in considering each inquiry and each item of information individually without considering how they fit together as a whole — whether the primary judge erred in finding that it was doubtful that a confidential source of the second appellant existed and, if it did, that it was doubtful that it provided the information the second appellant asserted it did — whether the primary judge erred in finding that a complaint and media release by the United States Department of Justice did not provide a reasonable basis for the views held by the second appellant and the allegations contained in the matter complained of — whether the primary judge, in expressing views about whether there was a basis for the second appellant’s opinions about the respondent, erred in taking into account the fact that matters involved in those opinions were not put to the respondent in cross-examination — whether the primary judge erred in failing to take into account that the second appellant took reasonable steps to obtain and report the respondent’s side of the story APPEALS — where the appeal to this Court is under s 24 of the Federal Court of Australia Act 1976 (Cth) and is by way of rehearing — consideration of the function of an appellate court in an appeal by way of rehearing PRACTICE AND PROCEDURE — whether the primary judge erred in awarding interest pursuant to s 51A(1)(b) of the Federal Court of Australia Act 1976 (Cth) at the rate prescribed by the Uniform Civil Procedure Rules 2005 (NSW) ...

Catchwords: PRACTICE AND PROCEDURE – appeal from order dismissing appellant’s proceeding as an abuse of process –where primary judge held that it was an abuse of process for the appellant to institute the proceeding for the predominant purpose of seeking relief because a third person wanted that relief – whether appeal inutile – whether primary judge misapplied the distinction between the purpose and the motive for instituting a proceeding made in Williams v Spautz (1992) 174 CLR 509 – where neither the appellant’s or third party’s predominant purpose was held to be a purpose for which the proceeding was not designed, the proceeding was not an abuse of process – appeal allowed. ...

Catchwords: CONSUMER LAW – comparative advertising of over-the-counter analgesic products – whether advertisements contravened Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) – misleading or deceptive conduct – false or misleading representations – conduct liable to mislead as to nature or characteristic of goods – whether adequate scientific foundation for representations as to superiority of pain relief provided by appellant’s analgesic product over other analgesic products – whether primary judge erred in evaluating the evidence – whether primary judge erred in applying the onus of proof – appeal dismissed ...

Catchwords: TAXATION – customs and excise – tariff concession order (“TCO”) – core criteria – substitutable goods – appeal from decision of the Administrative Appeals Tribunal – where TCO application made in respect of unattended trains to be incorporated into the Sydney Metro Train Network was refused – whether Tribunal erred in applying ss. 269B and 269C of the Customs Act 1901 (Cth.) – whether Tribunal erred in finding that particular trains produced in Australia are “substitutable goods” in respect of the applicant’s trains – whether Tribunal misunderstood its statutory task and failed to make necessary findings of fact – whether Tribunal failed to make findings with respect to the uses to which the particular trains described in the TCO application and the putative “substitutable goods” can be put – whether Tribunal addressed the question of use at an impermissible level of generality ...

Catchwords: PRACTICE AND PROCEDURE – application for an extension of a non-publication order in respect of judgment in criminal matter – where primary objective of the administration of justice is to safeguard the public interest in open justice – whether non-publication order necessary to prevent prejudice to the proper administration of justice – whether publication of judgment would potentially prejudice the right to a fair trial – non-publication order not necessary to prevent prejudice to the proper administration of justice – application dismissed ...

Catchwords: INDUSTRIAL LAW – adverse action – where applicant employee of law firm, who made repeated criticisms in media about government clients of firm, dismissed for breaching firm’s media policy – where firm’s media policy prohibited employees criticising clients or potential clients in the media without permission – where primary judge found that managing partner did not take action against employee because of applicant’s political opinion – whether adverse action taken against applicant because he breached firm’s media policy necessarily taken because of his political opinion – whether managing partner of firm dismissed applicant because of his political opinion in contravention of s 351 of the Fair Work Act 2009 (Cth) – whether not open to primary judge to find that applicant’s political opinion was not a substantial and operative factor in decision maker’s reasons – appeal dismissed ...

Catchwords: HUMAN RIGHTS – appeal from judgment dismissing an application for relief in relation to alleged contraventions of the Racial Discrimination Act 1975 (Cth) – where a local Council determined the franchise for a ballot to assess community views in relation to the construction of a radioactive waste management facility in the Council’s area of responsibility – where land proposed for radioactive waste management facility neighbours land in respect of which Aboriginal persons have recognised native title rights and interests – where Council passed resolutions having the effect that the possession of native title rights and interests would not qualify a person to participate in the ballot – whether primary judge erred in concluding that the act of passing the resolutions did not involve a distinction, exclusion, restriction or preference based on race ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing application for review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of Minister’s delegate refusing grant of protection visa – apprehended bias – where Authority was provided with information regarding criminal charge against appellant – where Authority expressly disavowed reliance on the information – whether fair-minded lay observer might reasonably apprehend bias – legal unreasonableness – whether Authority erred by rejecting appellant’s claim of statelessness – whether Authority erred in making findings based on appellant’s manner of giving evidence – appeal allowed ...

Catchwords: NATIVE TITLE – interlocutory application – proposed separate question and/or declarations – whether State can require entry into an indigenous land use agreement as pre-condition of consent determination – duty to act in good faith in conduct of mediation – duty enforceable by appropriate remedy if duty breached – insufficient evidence to enable Court to find lack of good faith in conduct of mediation – application dismissed PRACTICE AND PROCEDURE – application of overarching purpose of the civil practice and procedure provisions pursuant to ss 37M and 37N Federal Court of Australia Act 1976 (Cth) – Court not confined to make order based on civil practice and procedure provisions for breach of duty – Court not confined to making costs order for breach of duty – Court has power to control its own processes ...

Catchwords: MIGRATION – visa cancelled on character grounds – refusal of Assistant Minister to revoke cancellation decision – whether Assistant Minister committed jurisdictional error by having only selective regard to sentencing remarks – whether Assistant Minister’s decision affected by legal unreasonableness HIGH COURT AND FEDERAL COURT – application to introduce new arguments on appeal – where grant of leave would undermine the purpose of the conferral of appellate jurisdiction – duty of appellant’s legal representative in relation to the orderly and timely preparation of the appellant’s case – whether appellant had legal assistance at first instance notwithstanding no notice of acting had been filed on his behalf – absence of explanation for failure to advance arguments in judicial review proceedings at first instance – proposed grounds of appeal lacking in merit – leave to introduce new grounds refused CONSTITUTIONAL LAW – application for leave to introduce on appeal issues arising under the Constitution not previously argued – whether acceptance of proposed grounds would sound in the relief sought – proposed grounds having no utility – proposed grounds having insufficient prospects of success to justify the grant of leave ...

Catchwords: MIGRATION – where appellants’ visas were cancelled under s 501(3A) of the Migration Act 1958 (Cth) – where delegates of the Minister refused to revoke the cancellation decisions under s 501CA(4) – whether the primary judge erred by failing to hold that the Administrative Appeals Tribunal made a jurisdictional error by applying s 501CA to the appellants when they were not a “person” within the meaning of that provision – Art 12(4) of the International Covenant of Civil and Political Rights – whether a “person” under s 501(3A) and s 501CA(4) must be read down in accordance with the principle of legality by reference to the right in Art 12(4) or an equivalent new right at common law – whether the common law should be extended to include such a right ...

Catchwords: MIGRATION – mandatory cancellation of appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth) – decision of a delegate of the Minister under s 501CA(4) not to revoke the cancellation decision – decision of the Administrative Appeals Tribunal to affirm the delegate’s decision – where the appellant was a citizen of Myanmar and relied on international non-refoulement obligations in his representations as to why the cancellation decision should be revoked – whether the Tribunal failed to consider the appellant’s representations based on non-refoulement obligations and the fear of harm if the appellant were returned to Myanmar – appeal dismissed with costs ...

Catchwords: MIGRATION – character test – Migration Act 1958 (Cth) s 501 – risk of Appellant engaging in criminal conduct based on past criminal conduct – whether Administrative Appeals Tribunal failed to consider lay character evidence suggesting maturation and change in Appellant’s character – jurisdictional error established – leave granted and appeal upheld on grounds not advanced before primary judge ...

Catchwords: TAXATION – allowable deductions – where taxpayer made 64 separate acquisitions of shares in one company – whether the taxpayer’s acquisition of shares was made in a “business operation or commercial transaction” within the meaning of the principle established in Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199 – whether loss or outgoing was incurred in gaining or producing assessable income – whether the shares had been held by the taxpayer on revenue account – whether the shares were purchased in circumstances which were akin to, or indistinguishable from, an ordinary investment engaged by a private investor TAXATION – whether legal fees and share losses incurred by the taxpayer by reason of the compulsory transfer and cancellation of his shares were deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) ...