FCAFC

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: 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: 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: 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: 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: 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: 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) ...

Catchwords: CORPORATIONS – where declaration made that enterprise agreement is void and of no effect – where monies ordered to be held on trust pending outcome of appeal – where orders provided that monies be distributed to CFMMEU members with an interest in the trust monies if the appeal was dismissed or discontinued – where appeal to Full Court dismissed – where the question of distribution of trust monies remitted to the primary judge – where the primary judge ordered on the remitter that trust monies be distributed to the first respondent to be dealt with by its liquidators in accordance with their statutory responsibilities – whether the primary judge’s exercise of discretion miscarried – whether the primary judge erred in having regard to views of the Full Court – whether the primary judge erred in having regard to the nature of the proceeding – whether the primary judge erred in having regard to a potential contravention of s 596AB of the Corporations Act 2001 (Cth) – no error shown – leave to appeal granted – appeal dismissed PRACTICE AND PROCEDURE – applications to adduce further evidence on appeal – where the further evidence only became available after the first instance proceeding and was relevant to subject matter of appeal – where the further evidence responded to a new argument made on appeal by the other party – applications granted ...

Catchwords: MIGRATION – appeal from single judge of this Court quashing decision of Minister, acting personally, to cancel the respondent’s visa under s 501(2) – visa holder arrived in Australia in 1981 – the Minister by his delegate cancelled the visa under s 501(2) relying on s 501(6)(a) and s 501(7)(c), that is, on character grounds due to substantial criminal record – the Administrative Appeals Tribunal set aside the decision and substituted a decision not to cancel under s 501(2) – some years later the Minister, acting personally, purported to exercise power under s 501(2) to cancel the visa, relying on the same matters as those relied upon by the Tribunal to enliven the power – cancellation decision set aside by the primary judge due to lack of statutory authority to cancel the visa – whether the Minister can re-exercise the discretion conferred by s 501(2) to cancel a visa where the Tribunal has earlier set aside a delegate’s decision to cancel the visa under that same provision – whether the Minister can re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review – consideration of the terms and structure of the Migration Act 1958 (Cth) as a whole, surrounding provisions (particularly s 501A), and the nature and character of the function of the Tribunal in independent review of decisions of the Executive – appeal dismissed ...

Catchwords: MIGRATION – appeal from a single judge of this Court dismissing an application for judicial review of a decision of the Minister, acting personally, to cancel the respondent’s visa under s 501(2) – whether the Minister can re-exercise the discretion conferred by s 501(2) to cancel a visa where the Tribunal has earlier set aside a delegate’s decision to cancel the visa under that same provision – whether the Minister can re-exercise the discretion relying on the very same facts to enliven the discretion in s 501(2) as the Tribunal did on review – appeal allowed for the reasons set out in Minister for Home Affairs v Brown [2020] FCAFC 21 ...

Catchwords: PRACTICE AND PROCEDURE – discovery – privilege against self-incrimination – privilege against exposure to penalties – where accounting firm objected to production of its audit files, review files and working papers in relation to the relevant engagements – where the statement of claim alleged contraventions of statutory provisions that were offence provisions and/or pecuniary penalty provisions – whether production of the documents would give rise to a real and appreciable risk of prosecution and/or institution of proceedings for a pecuniary penalty – whether primary judge erred in finding no real or appreciable risk of criminal or civil penalty proceedings being commenced against partners of the accounting firm who were not directly involved in the relevant engagements PRACTICE AND PROCEDURE – discovery – control – where primary judge made production order requiring uninvolved partners to produce the relevant documents – whether primary judge erred in finding that the uninvolved partners had control of the relevant documents at the time of making the production order PRACTICE AND PROCEDURE – discovery – application to be excused from complying with production order or that the production order be discharged – where a partner who was not required to produce the relevant documents (on the basis of a successful claim of privilege against self-incrimination) obtained the documents and refused to make them available to the other partners – whether in the circumstances the partners who were subject to the production order should be excused from complying with the production order – whether the production order should be discharged – where primary judge did not excuse the relevant partners from complying with the production order, nor discharge the production order, on the basis of the events that occurred after making the production order – whether primary judge erred in finding that the relevant partners had failed to discharge the onus of establishing a proper basis for excusing the partners from complying with the production order or discharging the order ...

Catchwords: MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of the Immigration Assessment Authority affirming the delegate's decision to refuse appellants' applications for protection visas - where appellants sought leave to raise new ground of appeal - whether decision of Authority not to consider new information reached by process of reasoning that was illogical and unreasonable - consideration of s 473DD of Migration Act 1958 (Cth) - leave granted to raise amended ground of appeal - appeal allowed ...

Catchwords: MIGRATION – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where the appellant claimed risk of harm by way of physical violence if he were returned to his country of origin – whether primary judge erred in not finding that the Administrative Appeals Tribunal had failed to address and/or meaningfully engage with the appellant’s claim regarding risk of harm – appeal allowed with costs ...

Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application to review delegate's decision to refuse to grant a protection visa - where delegate formed opinion that appellant was an excluded fast track review applicant and excluded from merits review by the Immigration Assessment Authority - consideration of proper construction of definition of 'excluded fast track review applicant' in Part 7AA of Migration Act 1958 (Cth) - whether opinion of delegate formed on the basis of materials which were an insufficient foundation - appeal dismissed ...

Catchwords: INDUSTRIAL LAW – adverse action – appeal and cross-appeal from two decisions of the Federal Circuit Court of Australia – whether respondent was dismissed in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the “FW Act”) – whether respondent was “able to make” a complaint or inquiry – whether penalties imposed were manifestly excessive – appeal and cross-appeal both upheld in part CONTRACTS – employment contract – cross appeal against finding that contract of employment was not breached – whether absence from duty triggered an entitlement to summarily terminate – whether employee was absent for a valid reason – whether absence was waived or condoned, or otherwise consented to – whether employee was entitled to damages for breach of contract – no breach of contract – cross-appeal dismissed in part COMPENSATION – whether statutory compensation awarded was sufficient or excessive – whether judge below erred in awarding compensation in an amount equal to a prior offer that was rejected – whether compensation should be assessed as the value of the remaining contract period – cross-appeal dismissed ...

Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Ministerial Direction 53 – whether the Administrative Appeals Tribunal was obliged to consider all factors in Direction 53 – Tribunal obliged to turn his or her attention to each factor during the decision-making process and genuinely consider whether and how the factor should be brought to bear in reaching the decision – whether Tribunal obliged to make findings in respect of each factor mentioned in Direction 53 – Tribunal not obliged to make findings about each factor – whether Tribunal acted irrationally in considering visa applicant’s personal ties to his home country – whether Tribunal made a finding which was not open – appeal dismissed ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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