FCAFC

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 – 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: 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: 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) ...

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

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

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

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

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

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

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

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

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

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

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