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Catchwords: PRACTICE AND PROCEDURE – interlocutory application – single judge exercising appellate jurisdiction of Court under Federal Court of Australia Act 1976 (Cth) to dismiss appeal by way of final orders for failure on part of appellant to provide security for costs – appeal dismissed for failure to provide security for costs ...

Catchwords: COSTS – indemnity costs – claim for indemnity costs based on offers to compromise made under rule 25.01 of the Federal Court Rules 2011 (Cth) – whether costs should be awarded on an indemnity basis – where offerees made application a month after judgment – where rejections of offers were not unreasonable – indemnity costs not awarded ...

Catchwords: INDUSTRIAL LAW – claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) – whether primary judge erred in dismissing claims CORPORATIONS LAW - claim made under s 232 of the Corporations Act 2001 (Cth) - whether primary judge erred in dismissing claim APPEALS – findings of fact – not shown to be glaringly improbable – role of appellate court in reviewing findings of fact ...

Catchwords: BANKRUPTCY – appeal from decision of the Federal Court of Australia – whether a single joint creditor has standing under s 90-20 of the Insolvency Practice Schedule (Bankruptcy), Schedule 2 of the Bankruptcy Act 1966 (Cth) to apply for an order to remove and replace a trustee pursuant to s 90-15 – whether proof of debt capable of being lodged by one only of joint creditors – proper characterisation of “creditor” in the Insolvency Practice Schedule – meaning of “creditor” derived from nature of the creditor’s obligation and statutory context in which that expression is used – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of primary judge to dismiss application for judicial review of Minister’s decision to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) – whether s 501(3) can be “re-exercised” by the Minister – whether Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117 (Makasa) can be applied by analogy – where the evidence showed that the Minister’s earlier decision was in reference to s 501(2) – whether s 501 ought to be construed as conferring but one visa cancellation power – held by the Court that there was no “re-exercise” of the power in s 501(3) – whether the Minister misunderstood the operation of s 501(3) by failing to appreciate that he was not precluded from giving effect to the rules of procedural fairness – where the primary judge did not have a special advantage at trial to make an evaluative decision – where Ministerial reasons and related submissions were neutral as to evidence of the misunderstanding – where the appellant bears the onus of establishing the factual premise – appeal dismissed PRACTICE AND PROCEDURE – application for leave to rely on grounds not raised in the original jurisdiction – where grounds raised as a result of the High Court Decision in Makasa handed down after final orders made in the original jurisdiction – leave granted ...

Catchwords: TAXATION – interaction between div 855 of the Income Tax Assessment Act 1997 (Cth) (1997 Act), sub-div 115-C of the 1997 Act and div 6 and div 6E of the Income Tax Assessment Act 1936 (Cth) (1936 Act) considered – where capital gains made by a resident trust estate from non‑taxable Australian property distributed to non-resident beneficiary – where trustee assessed in respect of those gains pursuant to s 115-220 of the 1997 Act and s 98 of the 1936 Act – where foreign resident beneficiary also assessed in respect of those gains pursuant to s 115-215(3) of the 1997 Act – whether s 855-10 of the 1997 Act applied to the foreign resident beneficiary to disregard the capital gains – whether s 855-10 has any operation in the calculation of the amounts required to be calculated under ss 115-215 and 115‑220 in sub‑div 115-C – construction of s 855-10 and sub-div 115-C – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Court of Australia – application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to revoke mandatory cancellation of Appellant’s partner visa – whether the Tribunal failed to consider the impact on a victim of the cancellation of the visa – whether there was denial of procedural fairness to the Appellant – appeal dismissed ...

Catchwords: WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – whether employee suffered “disease” within meaning of s 4(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether employment must continue to contribute to ailment to a material degree – whether employee entitled to compensation pursuant to ss 14 or 16 in respect of injury that has resolved – whether entitlement to compensation pursuant to s 19 is dependent on entitlement to compensation pursuant to s 14 – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision dismissing application for judicial review – decision by Minister not to revoke mandatory cancellation of appellant's visa under s 501CA of the Migration Act 1958 (Cth) – appellant made representations out of time – Minister accepted that representations were made within time but later said that they were not – held: proper construction of Migration Act does not permit Minister to issue a second invitation to a person to make representations under s 501CA – appeal dismissed ...

Catchwords: MIGRATION – where Administrative Appeals Tribunal (AAT) refused to revoke mandatory cancellation of visa – whether procedural unfairness and practical injustice in AAT’s treatment of expert evidence – failure to put adverse considerations not in evidence to the expert where he was not called to give evidence before Tribunal – whether considerations not in evidence were determinative of the decision on the issue said to be addressed by the expert ...

Catchwords: COSTS – discretion to award costs – costs of trial and appeal – where respondent succeeded at trial – where appellant’s success depended on one ground not squarely raised below – whether to depart from usual costs rule – consideration of ‘public interest litigation’ – where particular circumstances of the case justified departure from the usual costs rule ...

Catchwords: REPRESENTATIVE PROCEEDINGS – shareholder class action – claims brought on behalf of non-resident shareholders – dual listed company structure – whether provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) capable of application to group members not resident in Australia – procedure under Pt IVA – consideration of the meaning of “claim” under s 33C – question of jurisdiction better defined as whether Pt IVA permits an applicant to define group membership as including claims of non-residents – statutory presumption against extraterritorial operation of legislation – s 33C directed to when a particular form of proceeding can be commenced in an Australian court – presumption has no work to do – consideration of class action regimes in different common law jurisdictions and the issue of non-resident group members – consideration of s 33KA of the Supreme Court Act 1986 (Vic) – whether the Court should exercise its discretion to exclude non-resident group members from the proceeding – order could be fashioned if and when appropriate – strike out application – whether the claims brought on behalf of the shareholders in the United Kingdom company were viable EQUITY – Pt IVA supplements powers Court always had and has as a court of equity to hear and determine in a single proceeding the multiple claims against a respondent – consideration of the powers the Court of Chancery had in relation to the conduct of a representative proceeding – concept of jurisdiction not based on mere presence and service, but upon a sufficient connexion being shown between the dispute and forum – purpose of Pt IVA not to narrow regimes that existed in equity’s exclusive or auxiliary jurisdiction – curious result if one could be a group member in a Chancery rule representative proceeding but not under Pt IVA procedures PRIVATE INTERNATIONAL LAW – authority of the Court to decide personal actions of non-residents – consideration of the jurisdictional “anchor” – Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 – territorial nexus the capacity to exercise power over a respondent HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether Pt IVA confers jurisdiction on the Court or establishes powers and procedures by which the Court can exercise jurisdiction ...

Catchwords: ADMINISTRATIVE LAW – challenge to validity of a determination made by the Health Minister under s 477(1) of the Biosecurity Act 2015 (Cth) – where determination prevented Australian citizens, permanent residents, or operators of outgoing aircraft or vessels from leaving Australian territory, unless an exemption applied – whether determination requires an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of Pt 3 of Ch 2 of the Act and is therefore invalid by reason of s 477(6) – whether s 477(6) prevents a determination applying to a group or class of individuals STATUTORY INTERPRETATION – whether s 477(3)(b) of the Biosecurity Act 2015 (Cth) refers to “places” outside Australian territory – whether Act displaces presumption that references to the singular include the plural ...

Catchwords: BANKRUPTCY – application for leave to appeal and extension of time to appeal from orders of Federal Circuit Court refusing to set aside bankruptcy notice and dismiss proceedings – where appellant conceded that costs assessment underlying the bankruptcy notice was affected by error – where respondent had filed an application to set aside the bankruptcy notice – whether primary judge had a discretion to set aside bankruptcy notice and dismiss proceedings – where review process by specialist review panel to correct costs assessor’s determination available – sufficient doubt to warrant grant of leave – substantial injustice would result if leave not granted – leave to appeal and extension of time to appeal granted – appeal allowed ...

Catchwords: MIGRATION – appeal against declaration that the respondent is an “Australian citizen” within meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) – where respondent born in the Australian external territory of Papua prior to Independence Day – where respondent’s parents both naturalised Australian citizens – whether the respondent became a citizen of Papua New Guinea (PNG) on Independence Day by virtue of s 64 and s 65 of the PNG Constitution and regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulation 1975 (Cth) – whether the respondent would have been an “immigrant” for the purpose of s 6(1) of the Migration Act 1958 (Cth) as at 16 September 1975 – consideration of “immigration” in s 51(xxvii) of the Constitution – where respondent’s parents held domicile of Australia – whether respondent held domicile in Australia – appeal dismissed PRACTICE AND PROCEDURE – where appeal required consideration of the unwritten law of PNG – where the law reports and legislation of PNG taken into account pursuant to s 174 and s 175 of the Evidence Act 1995 (Cth) – parties given opportunity to make further submissions on additional material considered by the Court ...

Catchwords: SOCIAL SECURITY – appeal from decision of primary judge to dismiss application for judicial review under Administration Decisions (Judicial Review) Act 1977 (Cth) – appellant’s Newstart allowance suspended for non-compliance with mutual obligation requirements under s 42AF of Social Security (Administration) Act 1999 (Cth) –legislative scheme of Pt 3, Div 3AA considered – where suspension decision made under s 42AF(1)(a) – where allowance reinstated and appellant repaid allowance without imposition of “reconnection requirement” – appellant sought review of respondent’s conduct in allegedly refusing to conduct internal review of suspension decision – where s 129 internal review decision provided to appellant after judicial review proceedings instigated – judicial review proceedings futile – adequate provision of merits review in Administrative Appeals Tribunal – no denial of procedural fairness – no appealable error established ...

Catchwords: INDUSTRIAL LAW — interpretation of enterprise agreement providing for wage increases after nominal expiry date — where primary judge had held that employer contravened the Fair Work Act 2009 (Cth) for failing to pay wage increases after nominal expiry date and before new agreement came into effect — where the condition for those increases was “the absence of re-negotiation”, whether properly construed the phrase referred to the absence of a re‑negotiated agreement, as the primary judge determined or the failure to begin the process of re-negotiation, as the employer contended — where the increases for which the agreement provided after the nominal expiry date were expressed as “the agreed increase of pay for each anniversary such date thereafter”, whether the date in question was the nominal expiry date of the agreement, as the employer contended, or the date of the last increase of pay detailed in the remuneration clause, as the primary judge found — where delay in complaining about contravention, whether primary judge erred in awarding interest on unpaid amounts ...

Catchwords: ADMINISTRATIVE LAW – citizenship – appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – revocation of the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) – whether the Tribunal erred – whether discretion to revoke considered separately from public interest – whether the Tribunal considered an open offer made in the proceeding – whether the applicant was a dual citizen of Ireland – limited review of a state of satisfaction – whether if there was uncertainty in relation to the applicant’s dual citizenship that should have been considered in the exercise of the discretion – whether an earlier Tribunal decision was a thing in fact under the Australian Citizenship Act 2007 (Cth) despite being affected by jurisdictional error such as to make effective the applicant’s renunciation of Irish citizenship ...

Catchwords: CORPORATIONS - application for leave to appeal from interlocutory decision - appeal from interlocutory decision not to restrain arbitration in California - where parties entered into licence agreement to manufacture and sell almond milk products - where licence agreement provides for arbitration of any controversy between parties in California - where respondent commenced arbitration on basis of licence agreement - whether licence agreement is franchise agreement for purpose of Franchising Code of Conduct - whether arbitration clause of no effect due to contravention of Code - where Code provides that franchise agreement must not contain clause requiring arbitration in jurisdiction outside Australia - consideration of definition of franchise agreement in Code - leave to appeal granted - appeal dismissed ...

Catchwords: MIGRATION – application for non-publication order – whether the appellant’s name should be replaced with a pseudonym – where a pseudonym is sought to assist the appellant to re-establish himself and gain employment in the United Kingdom – whether the order is necessary to prevent prejudice to the proper administration of justice ...

Catchwords: BANKRUPTCY – appeal from orders made by the Federal ‍Circuit Court – where primary judge made a sequestration order against appellant’s estate – whether primary judge denied appellant procedural fairness – where appellant is self-represented – where primary judge did not advise appellant of his right to cross-examine – where appellant filed material with the Court – where material not before primary judge – where only single copy of material available between appellant and primary judge at hearing – where appellant required to make submissions without the benefit of his copy of the material – where no opportunity for trial judge to have fully read the appellant’s material – where appellant not informed at outset of hearing of time available to make submissions – where additional time to make submissions permitted on an ad hoc basis – appeal allowed BANKRUPTCY – sequestration orders – where sequestration order made by primary judge is to be set aside – whether creditor’s petition has lapsed by reason of s 52(4) of the Bankruptcy Act 1966 (Cth) – where more than 12‍months lapsed since presentation of creditor’s petition – where sequestration order made within 12 months of presentation of creditor’s petition – creditor’s petition has not lapsed BANKRUPTCY – application by trustees in bankruptcy for the Court to exercise its discretion to annul the appellant’s bankruptcy under s ‍B of the Bankruptcy Act 1966 (Cth) instead of setting aside the sequestration order – where trustees seek entitlement to remuneration and expenses to date under s 153B of the Bankruptcy Act 1966 (Cth) in administering the appellant’s bankrupt estate – where trustees chose to intervene in appeal to advance their case but did not participate in substance of appeal – where trustees proceeded to incur costs in administering the appellant’s bankrupt estate despite knowledge of this appeal – application dismissed ...

Catchwords: INDUSTRIAL LAW – statutory interpretation – construction of Live Performance Award 2010 – where employer in live performance industry employed disc jockey as a casual to work usually at private functions – whether “performance” as defined had to be open to general public for Award to apply – held: Award applied where employer of disc jockey received payment or benefit for performance. ...

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from Federal Circuit Court of Australia – where primary judge dismissed application for summary judgment to set aside notice issued pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) by Official Receiver – where underlying basis for notice issued pursuant to s 139ZQ was to recover transfer at undervalue within meaning of s 120(1) of the Act – whether limitation period in s 127(3) of the Act requires a notice issued pursuant to s 139ZQ to be complied with or sought to be enforced within six years – appeal dismissed ...

Catchwords: TRADE MARKS – ownership of trade marks – vodka products – competing claims to ownership of trade marks between Russian Federation entities and Dutch company – permanent stay of cross-claim – failure to give proper discovery – extent of permanent stay – whether issues estoppel arising from Dutch litigation should have been permitted to be further litigated – relevance and application under Australian law of the principle in Arnold v National Westminster Bank plc [1991] 2 AC 93 – whether discretionary defences of laches, equitable estoppel and rectification under s 88 of the Trade Marks Act 1995 (Cth) should have been permitted to be further litigated – relevance of the discovery given in the US proceeding to the discharge of Australian discovery obligations – leave to adduce new evidence concerning US proceeding – leave refused – principles to apply in permanently staying a proceeding for want of discovery – exercise of discretion – discussion of Clifton (Liquidator) v Kerry J Investment Pty Ltd (2020) 379 ALR 593 – whether discretion miscarried – appeal allowed – limited remitter ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court affirmed decision of Immigration Assessment Authority – leave to raise new ground on appeal granted – where audio recording of interview unavailable – whether Authority erred by failing to exercise discretion under s 473CB to invite applicant to an interview to remedy non-provision of review material – non-provision of audio recording not material – appeal dismissed ...

Catchwords: TAXATION – income tax – deductibility – payments made upon entering into lease and license agreements of franchise restaurants – payments described as prepayments of rent – whether payments were capital in nature or on revenue account – characterisation of advantage sought – where the quantum of the prepayment was calculated without reference to the terms of the lease and license agreements ...

Catchwords: HUMAN RIGHTS – claim of sexual discrimination and disability discrimination by employer – where applicant claims loss and damage caused by exacerbation of anxiety and depression – where applicant refuses to undergo a psychiatric examination to allow the respondent to adduce expert evidence – where primary judge ordered a permanent stay of proceedings consequent upon the applicant’s refusal – whether the order for a permanent stay was a just determination of the proceedings HUMAN RIGHTS – appeal from orders for a permanent stay of proceedings – whether orders are interlocutory in nature – whether leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – whether a permanent stay consequent upon a refusal to be medically examined is an interlocutory judgment that affects the liberty of an individual – consideration of the principles in Talacko v Talacko (2010) 183 FCR 297 EVIDENCE – admission into evidence of extracts of a psychiatric report contained in a pleading filed in separate proceedings brought by the applicant in a different court – where the respondent obtained the pleading by making an access request to the other court – where the respondent adduced extracts of the psychiatric report to demonstrate a proper basis for seeking its own medical examination of the applicant by its nominated expert – whether the primary judge misconstrued various provisions of the Evidence Act 1995 (Cth) in allowing the extracts to be adduced for this limited purpose only ...

Catchwords: INDUSTRIAL LAW – appeal and cross-appeal – claims arising from non-payment of employment entitlements – cross-claim arising from damage caused by breaches of employment obligations – secondment of employee to related foreign corporation – whether claims for unpaid entitlements inure as against Australian employer or foreign second employer – whether non-payment of certain entitlements contravened Fair Work Act 2009 (Cth) – whether primary judge erred in failing to make findings concerning alleged contraventions – whether primary judge erred by not imposing civil penalties for alleged contraventions – where limited power in proceedings in relation to a matter arising under the Fair Work Act to order that costs incurred by one party be paid by another, whether primary judge erred in awarding costs to respondents – whether cross-claim was a proceeding in relation to a matter arising under the Act – whether primary judge erred in calculating entitlement to long service leave – whether primary judge erred in finding that two payments made in settlement of third-party litigation were reasonably recoverable as damages for breach of employee’s duties – whether a third such payment ought also to have been recoverable – whether circumstances warranted a single, net judgment CONTRACT – termination of employment for misconduct – settlement of proceedings instituted by third parties in consequence of employee’s misconduct – whether settlement amount reasonably recoverable from employee as damages ...

Catchwords: CORPORATIONS – voidable transactions – unfair preferences – interpretation of s 588FA of the Corporations Act 2001 (Cth) – whether there was a continuing business relationship in the form of a running account – whether the peak indebtedness rule applies in the context of s 588FA(3) of the Act – meaning of “all transactions” – rule not applied – good faith defence under s 588FG(2) of the Act not made out – where defendant creditor had notice of insolvency – unnecessary to decide threshold question under s 553C of the Act of whether set-off is available in unfair preference claims ...

Catchwords: ENVIRONMENT LAW – statutory interpretation of exemption from Part 3 of the Environmental Protection Biodiversity Act 1999 (Cth) (EPBC Act) set out in s 38(1) the Act – whether conduct of forestry operations must be undertaken in accordance with any restrictions, limits, prescriptions, and contents of the Central Highlands Regional Forest Agreement (CH RFA) and the Code of Practice for Timber Production 2014 (Code) to secure the benefit of the exemption ENVIRONMENT LAW – alternative grounds of appeal relating to loss of exemption from Part 3 of the EPBC Act – whether failure to apply the precautionary principle as required by clause 2.2.2.2 of the Code resulted in the loss of the s 38(1) exemption – whether the preparation and promulgation of a Timber Release Plan is a ‘forestry operation’ as defined in the CH RFA – whether s 38(1) exemption is lost for every aspect of a forestry operation if the operation is not undertaken ‘in accordance with’ the Code in at least one respect – whether any of the impugned coupes are subject to the s 38(1) exemption ENVIRONMENT LAW – alternative grounds of appeal relating to construction and application of precautionary principle in the Code – whether precautionary principle is subject to two conditions precedent – whether precautionary principle requires that measures be taken to avoid all risks to threatened species – whether VicForests likely to comply with precautionary principle – whether error in the primary judge’s assessment of expert evidence ENVIRONMENT LAW – alternative grounds of appeal relating to miscellaneous alleged breaches of the Code and Management Standards and Procedures for Timber Harvesting Operations in Victoria’s State Forests – whether primary judge erred in finding that there was sufficient evidence to make findings relating to statutory prohibition against taking action likely to have significant impact on listed threatened species ...

Catchwords: PATENTS – standard and innovation patents for a method for detecting fluid injection in a patient – whether invalid for lack of novelty – working in public of the invention within the period of 12 months before the priority date – working for the purposes of “reasonable trial” – grace period exception under s 24(1)(a) of the Patents Act 1990 (Cth) – reg 2.2(2)(d) of the Patents Regulations 1991 (Cth) – infringement of patents – indirect infringement – s 117(2)(b) of the Act – application of objective standard – “reason to believe” – whether primary judge applied a subjective test – additional damages for infringement – s 122(1A) of the Act – exercise of discretion – appeal allowed ...

Catchwords: MIGRATION – protection visa – where the first respondent entered Australia by boat and was taken to what was then thought to be a “proclaimed port” – where the first respondent’s case was dealt with for several years on the assumption he was an “unauthorised maritime arrival” – where that assumption was incorrect – where, purportedly pursuant to s 195A of the Migration Act 1958 (Cth), the Minister granted the first respondent a temporary safe haven visa (for one week) and a bridging visa (for 12 months) – whether the grant of the temporary safe haven visa was valid – whether the first respondent’s application for a safe haven enterprise visa was valid – whether the Tribunal fell into jurisdictional error ...

Catchwords: PRACTICE AND PROCEDURE – application for release from implied Harman undertaking with respect to expert report borne out of mediation process in discontinued native title proceedings – report sought to be used by Glencore Coal for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act) by former applicants in the native title proceeding – where s 10 of Heritage Act concerns an exercise of executive power of a largely political character – consideration of circumstances in which a release from the implied Harman undertaking has been granted and applicable principles – whether primary judge erred in declining to exercise discretion to grant release from implied Harman undertaking – where strong public interest exists in ensuring Aboriginal peoples are not deterred from agreeing to the use of court processes in native title proceedings to assist in resolving their claims – appeal dismissed ...

Catchwords: MIGRATION – applicant brought to Australia under repealed s 198E of the Migration Act 1958 (Cth) for medical treatment – whether the applicant no longer needed to be in Australia for the temporary purpose pursuant to s 198AH(1A)(c) – appeal proceeding dismissed – in original jurisdiction proceeding whether the three preconditions in s 198AH(1A) met – whether the duty in s 198AD(2) engaged – the meaning of “reasonably practicable” pursuant to s 198AD(2) – declaratory relief granted ...

Catchwords: COSTS – application for indemnity costs – where appellant made a unilateral decision to remove certain pagination from the appeal book without notifying the first respondent – where costs incurred by first respondent updating submissions with references to new pagination – where decision was made in good faith – indemnity costs not awarded ...

Catchwords: TAXATION – research and development tax offset – where applicant held exploration permit for coal – where coal in the area had high level of ash content and the coal seams were banded – where applicant commenced a series of activities to investigate the nature and economic viability of mining the coal – where the Tribunal found that none of the registered activities were “core R&D activities” within the meaning of s 355-25(1) of the Income Tax Assessment Act 1997 (Cth) – where the Tribunal found that the exclusion in s 355-25(2)(b) applied – where the Tribunal found that the activities were not “supporting R&D activities” within s 355-30 – whether the Tribunal made findings for which there was ‘no evidence’ – whether the Tribunal applied the wrong legal test – held: appeal dismissed ...

Catchwords: CORPORATIONS – appeal from the order of the primary judge under s 70(3) of the Australian Securities and Investments Commission Act 2002 (Cth) that the appellant be required to comply with a notice to produce documents – where the primary judge found the appellant was in possession of documents for the purpose of production pursuant to the notice – where the documents were held by third party service providers – where the primary judge found the appellant lacked a reasonable excuse for failing to comply with the notice – whether the primary judge gave adequate consideration to the lack of cooperation by the third party service providers – whether the primary judge was compelled to accept certain documentary evidence in circumstances where it was not contradicted – whether the primary judge erred in finding it was necessary to lead evidence from the director of the appellant – whether the primary judge took irrelevant matters into account – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court found jurisdictional error in decision of Immigration Assessment Authority – whether Authority was not provided with all the “review material” – meaning of “review material”; “new information” – where audio recording or accurate transcript of interview unavailable – whether Authority had power to invite the applicant to an interview to remedy non-provision of review material – appeal allowed ...

Catchwords: MIGRATION – application for judicial review of decision of Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth) – where Federal Circuit Court refused applicant’s application for extension of time to file an application for review of decision of Administrative Appeals Tribunal – where applicant filed application for review and application for extension of time four days out of time – where Registry accepted documents for filing 34 days out of time – whether Federal Circuit Court proceeded on misunderstanding of date on which application for extension of time was filed – nature of jurisdictional error – whether Federal Circuit Court failed to give proper consideration to merits of grounds of judicial review – whether Federal Circuit Court failed to give proper consideration to applicant’s explanation for delay – whether Federal Circuit Court fundamentally misunderstood nature and character of applicant’s application for extension of time – application allowed ...

Catchwords: PRACTICE AND PROCEDURE – Federal Court Rules 2011 (Cth) r 39.05 – application to set aside and vary order imposing pecuniary penalties – where inconsistency in reasons for judgment did not result in error in the order – application dismissed. ...

Catchwords: MIGRATION – appeal from single Judge dismissing application for review of decision of Administrative Appeals Tribunal to refuse to revoke mandatory cancellation of visa on character grounds under s 501A of the Migration Act – proper construction of ss 197C and 198 of the Migration Act – consistency of Ministerial Direction 79 with s 197C, considered – meaning of indefinite detention – appeal dismissed ...

Catchwords: COSTS — application to vary costs order in relation to determination of separate question — where orders made for costs to be in cause — where applicant raised concerns as to utility of separate question — where terms of separate question reformulated by Court to address parties' concerns — where both parties unsuccessful in determination of separate question — application dismissed ...

Catchwords: REPRESENTATIVE PROCEEDINGS – proper form of orders in accordance with s 33ZB of the Federal Court of Australia Act 1976 (Cth) – order must describe or otherwise identify with precision group members who will be affected by such an order COSTS – costs follow event – lump sum costs assessment appropriate if no resolution reached by parties ...

Catchwords: CRIMINAL LAW — appeal from an order of the primary judge that an order of a magistrate made pursuant to s 3LA of the Crimes Act 1914 (Cth) is invalid — where an order pursuant to s 3LA was made in respect of a smart phone seized during the execution of a warrant for the search of a person — whether natural justice attaches to an application under s 3LA and the appellant was entitled to a hearing before the s 3LA Order was made — statutory construction of s 3LA — whether the s 3LA Order requires details of the information or assistance to be provided by the person to whom the order is directed — whether the s 3LA Order requires information as to the place at which and the time within which the information or assistance must be provided — whether the s 3LA Order contains the required details of the particular computer or data storage device which is the subject of the order — whether smart phone is a “computer or data storage device” for the purposes of s 3LA — whether breaches of various statutory provisions result in invalidity — whether the legislature intended to abrogate or curtail the privilege against self-incrimination — appeal allowed ...

Catchwords: TAXATION – application for Coronavirus economic response payment (jobkeeper payment) – whether respondent eligible for jobkeeper payment – whether respondent “had an ABN on 12 March 2020” within the meaning of s 11(6) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (CERP Rules) – where respondent was not registered for an ABN on 12 March 2020 – where respondent was later registered for an ABN with a “date of effect” covering 12 March 2020 – held respondent did not have an ABN within the meaning of s 11(6) of the CERP Rules – whether the Commissioner’s decision not to exercise the discretion in s 11(6) of the CERP Rules to allow a later time for the respondent to have an ABN forms part of the reviewable decision – held Commissioner’s decision not to exercise the later time discretion was part of the reviewable decision – whether Tribunal erred in exercising the discretion to allow a later time in the respondent’s favour – held Tribunal did not err in exercising discretion – appeal dismissed ...

Catchwords: CONSUMER LAW – where company admitted to unconscionable conduct by a system or pattern of behaviour in contravention of s 21 Australian Consumer Law (ACL) – where penalties and declarations agreed with regulator – where primary judge found the majority in Australian Securities and Investments Commission v Kobelt [2019] HCA 18 considered s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) requires exploitation of some disadvantage or vulnerability by a stronger party and therefore s 21 of the ACL also requires those features to be present in the conduct – primary judge not satisfied investors, to whom the company’s conduct was directed, could be characterised as vulnerable or exploited – primary judge found no contravention of s 21 – whether judge found exploitation of a special disadvantage in the equitable sense is required under s 21 – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage, or disability is a necessary element of statutory unconscionability under s 21 ACL – appeal allowed. ...

Catchwords: CONSUMER LAW - defective goods - urogynaecological medical devices - whether primary judge erred in finding safety of devices not such as persons generally were entitled to expect - whether primary judge erred in finding devices not of merchantable or acceptable quality, or not reasonably fit for purpose within meaning of Trade Practices Act 1974 (Cth) or the Australian Consumer Law - whether primary judge erred in finding respondents’ damage caused by defect CONSUMER LAW - misleading or deceptive conduct - information in connection with devices, instructions for use and marketing - whether primary judge erred in finding appellants engaged in misleading or deceptive conduct - whether primary judge erred in finding third respondent’s damage caused by misleading or deceptive conduct NEGLIGENCE - medical devices - duty of care - whether primary judge erred in finding appellants breached duty of care - inadequate pre-market and post-market evaluations of safety of devices - inadequate warnings of material risks of devices - standard of care - breach - regulatory environment - causation - onus of proof - application of ss 5C and 5D of the Civil Liability Act 2002 (WA) and ss 51 and 52 of the Wrongs Act 1958 (Vic) LIMITATION OF ACTIONS - whether primary judge erred in finding that first and third respondents’ claims in negligence were not statute barred - onus of proof - application of Limitation Act 1935 (WA) and ss 39(3) and (4) of Limitation Act 2005 (WA) OTHER RELIEF - whether primary judge erred in granting injunction enjoining appellants from supplying, distributing, marketing or promoting devices in Australia without warning or advice ...

Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – evaluative judgment under s 473DD – whether primary judge erred by failing to reach state of satisfaction in s 473DD – whether primary judge erred by failing to recognise that the Immigration Assessment Authority had not engaged in an active intellectual process – whether primary judge erred by failing to recognise that Authority had not considered whether there were exceptional circumstances to justify considering new information – appeal dismissed ...

Catchwords: COURTS AND JUDICIAL SYSTEM – apprehended bias – where judge hearing a regulatory civil penalty proceeding and a representative proceeding under Pt IVA of the Federal Court Act 1976 (Cth) consecutively – where judge intends to deliver judgment in both proceedings contemporaneously – where there is different and potentially conflicting evidence in the two proceedings – where there is no evidence of prejudgment – whether extraneous information has a subconscious effect on decision-making – whether hypothetical observer considers a judge to have the ability to discard extraneous information – recognition of human frailty by the hypothetical observer PRACTICE AND PROCEDURE – costs – contradictor appointed by the Court without any order for payment of costs – parties proceeding on assumption that contradictor was appearing pro bono ...

Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from decision of Federal Circuit Court to strike out statement of claim but with leave to replead — factors relevant to granting leave to appeal — where questions of general importance raised but no substantial injustice, whether leave should be granted PRACTICE AND PROCEDURE — application for judicial review of decision of Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth) to remove multiple respondents — whether primary judge failed to afford procedural fairness — whether denial of procedural fairness was material — whether there is utility in granting relief — whether applicant has a reasonable cause of action against the removed respondents ...

Catchwords: COSTS – discretion to award costs – costs of hearing and determination of separate question concerning Environment Protection and Biodiversity Conservation Act 1999 (Cth) – whether to depart from usual costs rule – consideration of “public interest litigation” – particular circumstances of the case justified departure from the usual costs rule – each party to bear its own costs ...

Catchwords: MIGRATION — appeal from decision to dismiss an application for an order in the nature of certiorari to quash an order of the Federal Circuit Court refusing an application for an extension of time to seek judicial review under s 477(2) of Migration Act 1958 (Cth) — where judgment of the Federal Circuit Court reserved for nearly five years but delay had no operative effect on judgment, whether primary judge erred in failing to find that delay of this magnitude is sufficient to give rise to jurisdictional error — whether jurisdictional error because Federal Circuit Court judge failed to take into account his own delay in deciding he was not satisfied it was necessary in the interests of the administration of justice to make the order ...

Catchwords: ADMINISTRATIVE LAW – appeal from decision of Federal Court of Australia dismissing the appellant’s application for judicial review – where Minister entered into payment plan with appellant – whether decision-maker had authority to make the decision – where delegation made under the Public Governance, Performance and Accountability Act 2013 (Cth) – whether decision-maker failed to take into account a relevant consideration – whether decision was legally unreasonable – where matter is subject to inexcusable delay – appeal dismissed PRACTICE AND PROCEDURE – onus of proof – where appellant to prove occurrence of alleged jurisdictional error – where appellant could have delivered notice to admit under r 22.01 of Federal Court Rules 2011 (Cth) – where appellant did not discharge onus of proof ...

Catchwords: ADMINISTRATIVE LAW – appeal from decision of Federal Court of Australia dismissing the appellant’s application for judicial review – where Minister did not waive debt of appellant – whether decision was legally unreasonable – where AHRC recommended compensation – appeal dismissed PRACTICE AND PROCEDURE – where appellant granted leave at first instance to amend originating application to include additional grounds of review – where appellant did not include grounds in originating application – where appellant seeks to raise similar grounds in appeal – where appellant self-represented ...

Catchwords: COSTS – application for lump sum costs by successful respondent in proceedings brought under Fair Work Act 2009 (Cth) – whether applicant instituted proceedings “without reasonable cause” within meaning of s 570(2)(a) of Fair Work Act 2009 (Cth) – where no application for costs made or foreshadowed at or before hearing, whether application should be refused in any event in exercise of Court’s discretion — application dismissed ...

Catchwords: CONSTITUTIONAL LAW – judicial power of the Commonwealth – dispute resolution clause (cl 77) in an enterprise agreement made under the Fair Work Act 2009 (Cth) provided for binding arbitration – whether in resolving by arbitration a dispute involving the employer brought pursuant to cl 77, the Fair Work Commission was purporting to exercise judicial power – where employer was not involved in the making of the enterprise agreement but became bound by that agreement by reason of the operation of the transfer of business provisions in Pt 2-8 of the Fair Work Act – distinction between a private arbitration and the exercise of judicial power discussed – whether the source of the authority of the Fair Work Commission to arbitrate was the consent of the disputants or the sovereign power of the Commonwealth – whether only an inter partes agreement made between the disputants could provide the requisite consensual foundation for a private arbitration – whether the requisite consent of the employer was established by its voluntary assumption of the binding force of the enterprise agreement and cl 77 thereof upon the employer taking steps to trigger the transfer of business provisions in Pt 2-8. INDUSTRIAL LAW – s 739 of the Fair Work Act – whether in resolving by arbitration a dispute pursuant to a dispute resolution clause in an enterprise agreement the Fair Work Commission was purporting to exercise judicial power. ...

Catchwords: MIGRATION – judicial review – appeal from decision of a single judge of the Court concerning the application of s 46A of the Migration Act 1958 (Cth) in the case of a child born in Australia to unauthorised maritime arrivals – the criteria for the lifting of the bar required to exist at the time of the visa application – appeal dismissed. MIGRATION – the requirement for procedural fairness in the steps taken by the Department after a decision by the Minister to consider whether to exercise the powers of Ministerial intervention under s 46A – whether the Minister had decided to consider exercising his powers to lift the bar – cross‑appeal dismissed. ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where the Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa – whether the designation of a person as an “unauthorised maritime arrival” pursuant to s 5AA of the Migration Act 1958 (Cth) (Act) can come to an end – whether the Authority assessed new information in accordance with s 473DD of the Act – whether non-compliance was material – appeal dismissed ...

Catchwords: MIGRATION - appeal from decision dismissing application for judicial review of decision of the Administrative Appeals Tribunal - where Tribunal affirmed decision of delegate of Minister not to revoke mandatory cancellation of visa - where appellant convicted of three counts of sexual offending against step-child and acquitted of fourth count of sexual offending against other step-child - where Tribunal received material relating to fourth count - whether primary judge erred in concluding Tribunal could take contentious material into account - whether primary judge erred in finding Tribunal's decision not vitiated by jurisdictional error due to apprehended bias - whether contentious material irrelevant - whether Tribunal had no jurisdiction to dispute findings by sentencing judge - appeal dismissed ...

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal to the Full Court from judgment of single judge pursuant to s 195(2) of the Trade Marks Act 1995 (Cth) – leave granted TRADE MARKS – opposition proceeding – s 44 ground of opposition – whether mark deceptively similar to prior registered marks – descriptive components and “idea” of trade mark ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision by the Immigration Assessment Authority (IAA) – whether primary judge erred in finding that IAA decision was not impugned by jurisdictional error – whether IAA failed to engage with evidence – whether failure of first respondent to provide audio recording of appellant’s Refugee Status Determination interview to IAA resulted in jurisdictional error – appeal dismissed ...

Catchwords: INDUSTRIAL LAW— appeal against quantum of pecuniary penalties for contraventions of s 500 of Fair Work Act 2009 (Cth) — where penalties imposed on appellant union a higher proportion of the maximum penalties for each contravention than those imposed on its officials, whether penalties manifestly excessive — whether reliance on appellant’s history of contraventions indicates that the sentencing discretion miscarried — whether primary judge misapplied parity principle ...

Catchwords: ARBITRATION – international arbitration – applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) (‘Arbitration Act’) PRIVATE INTERNATIONAL LAW – foreign state immunity – where foreign state respondent asserts sovereign immunity – interaction between s 9 of the Foreign States Immunities Act 1985 (Cth) (‘Immunities Act’) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) which is given the force of law by s 32 of the Arbitration Act – where s 9 of the Immunities Act provides that a foreign state is immune from the jurisdiction of the courts of Australia in a proceeding – where s 10 of the Immunities Act provides that a foreign state is not immune in a proceeding in which it has submitted to jurisdiction whether by agreement or otherwise – whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction within the meaning of s 10 of the Immunities Act PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the ICSID Convention – whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award – meaning of recognition and enforcement in Art 54 and execution in Art 55 – where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution ...

Catchwords: EQUITY – liability under the second limb of Barnes v Addy – whether it was open to the primary judge to find that the Third Appellant was liable to account to the Respondent on the pleadings and facts found by the primary judge – whether there was a need to expressly plead that the First and Second Appellants had engaged in a “dishonest and fraudulent design” – open to the primary judge to find that Third Appellant was liable to account to the Respondent COSTS – discretion as to costs – whether primary judge’s discretion miscarried in ordering that the Appellants pay, on an indemnity basis, the Respondent’s costs of the days of the hearing of the trial – primary judge’s decision as to costs was within the bounds of the primary judge’s discretion as to costs ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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