Recent Cases

Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112 (01 July 2022) (White JA and Basten AJA)

Catchwords: APPEALS – leave to appeal – interlocutory judgment – proposed appeal from refusal of leave to appeal from NCAT Appeal Panel – constrained approach to grant of leave for third level of appeal – primary judge found no error of law more than merely arguable – failure to consider submissions – LEASES AND TENANCIES …

Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112 (01 July 2022) (White JA and Basten AJA) Read More »

Kordovoulos v Dixon-Hughes [2022] NSWCA 110 (30 June 2022) (Mitchelmore JA)

Catchwords: APPEAL – representation of deceased estate – where interest of estate in the outcome of the appeal – where probate not to be applied for – appropriate for sole beneficiary under the will to be appointed to represent the estate APPEAL – security for costs – where security for costs sought against individual appellants …

Kordovoulos v Dixon-Hughes [2022] NSWCA 110 (30 June 2022) (Mitchelmore JA) Read More »

Yu v ACT Education Directorate [2022] FCAFC 110 (30 June 2022) (Thomas, SC Derrington and Halley JJ)

Catchwords: INDUSTRIAL LAW Ð adverse action Ð whether employee exercising a workplace right under s 343(1)(a) of the Fair Work Act 2009 (Cth) Ð where employee claimed to have been exercising her right to take reasonable care of her own health and safety under s 44 of the Work Health and Safety Act 2011 (ACT) …

Yu v ACT Education Directorate [2022] FCAFC 110 (30 June 2022) (Thomas, SC Derrington and Halley JJ) Read More »

Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 (28 June 2022) (Ward P, Gleeson and Mitchelmore JJA, Basten AJA and Preston CJ Of Lec)

Catchwords: LAND LAW – compulsory acquisition of land – compensation – compensable interests in land – bare licence to occupy land terminable at will by owners – interest had no market value – meaning of “privilege over, or in connection with, land” – claim for compensation for losses attributable to disturbance – Land Acquisition (Just …

Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 (28 June 2022) (Ward P, Gleeson and Mitchelmore JJA, Basten AJA and Preston CJ Of Lec) Read More »

Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (28 June 2022) (White and Mitchelmore JJA, Basten AJA)

Catchwords: APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant’s evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – …

Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (28 June 2022) (White and Mitchelmore JJA, Basten AJA) Read More »

Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107 (27 June 2022) (Meagher JA)

Catchwords: APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made …

Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107 (27 June 2022) (Meagher JA) Read More »

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108 (27 June 2022) (Besanko, Lee and O’Bryan JJ)

Catchwords: CONSUMER LAW – consumer credit – alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) (Act) and the National Credit Code in Sch 1 of the Act – prohibition on engaging in credit activity without an Australian credit licence – where second respondent provided loan application services to applicants for credit and …

Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108 (27 June 2022) (Besanko, Lee and O’Bryan JJ) Read More »

Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109 (27 June 2022) (Markovic, Thawley and Hespe JJ)

Catchwords: TAXATION – customs and excise – tariff concession order (TCO) – core criteria – substitutable goods – appeal from decision of the Administrative Appeals Tribunal (Tribunal) – where Tribunal set aside decision of the applicant to refuse the respondent’s application for a TCO – whether Tribunal erred in applying s 269B and 269C of …

Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109 (27 June 2022) (Markovic, Thawley and Hespe JJ) Read More »

DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107 (27 June 2022) (Besanko, Wheelahan and Rofe JJ)

Catchwords: PRACTICE AND PROCEDURE — application for extension of time within which to file Notice of appeal from orders made by Federal Court of Australia — where applicant filed application approximately three months out of time — where applicant in immigration detention and received limited legal assistance — where applicant deposed to belief he had …

DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107 (27 June 2022) (Besanko, Wheelahan and Rofe JJ) Read More »

Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 (23 June 2022) (Ward P, Gleeson and White JJA)

Catchwords: CONTRACTS — Deeds — Whether binding lease or agreement for lease came into existence prior to withdrawal by respondent from proposed lease transaction — Where heads of agreement reserved parties’ right to withdraw from and terminate negotiations at any time prior to execution of lease documents by both parties — Where respondent provided executed …

Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 (23 June 2022) (Ward P, Gleeson and White JJA) Read More »

Amgad v Cairns [2022] NSWCA 101 (22 June 2022) (Gleeson JA)

Catchwords: CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where proposed appeal is devoid of merit – where Applicant has a prolonged grievance against his former counsel – where applicant unlikely to accept advice explaining defects in his case

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 (22 June 2022) (Bromwich, Thomas and Raper JJ)

Catchwords: MIGRATION – s 501(3A) Migration Act 1958 (Cth) – where the Minister’s delegate determined not to revoke cancellation of the appellant’s visa – application for judicial review of the decision of the Administrative Appeals Tribunal affirming a decision of the delegate not to revoke cancellation – whether the Tribunal misconstrued paragraph 13.2(4)(f) of Direction …

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 (22 June 2022) (Bromwich, Thomas and Raper JJ) Read More »

Chisak v Presot [2022] NSWCA 100 (21 June 2022) (Macfarlan, Gleeson and White JJA)

Catchwords: SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly …

Chisak v Presot [2022] NSWCA 100 (21 June 2022) (Macfarlan, Gleeson and White JJA) Read More »

Daley v Donaldson [2022] NSWCA 96 (17 June 2022) (Leeming, White and Mitchelmore JJA)

Catchwords: SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – …

Daley v Donaldson [2022] NSWCA 96 (17 June 2022) (Leeming, White and Mitchelmore JJA) Read More »

Morris v Leaney [2022] NSWCA 95 (17 June 2022) (Payne, White and Beech-Jones JJA)

Catchwords: PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant’s home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided “opinion on probable cost” of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – …

Morris v Leaney [2022] NSWCA 95 (17 June 2022) (Payne, White and Beech-Jones JJA) Read More »

O’Connor v O’Connor [2022] NSWCA 97 (17 June 2022) (Bell CJ, Ward P and Leeming JA)

Catchwords: APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge …

O’Connor v O’Connor [2022] NSWCA 97 (17 June 2022) (Bell CJ, Ward P and Leeming JA) Read More »

LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 (16 June 2022) (Middleton, Lee and Anderson JJ)

Catchwords: CORPORATIONS – appeal from the decision of the primary judge in Stanwell Corporation Limited v LCM Funding Pty Ltd [2021] FCA 1430 – whether the primary judge ought to have found that the litigation funding scheme does not have the features of the definition of a managed investment scheme (MIS) as set out in …

LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 (16 June 2022) (Middleton, Lee and Anderson JJ) Read More »

Hill v Zuda Pty Ltd [2022] HCA 21 (15 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Superannuation – Self managed superannuation fund – Binding death benefit nomination – Where reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) prescribed standards for, relevantly, regulated superannuation funds for payment of member’s superannuation benefits to nominated person on or after member’s death – Where trust deed for self managed superannuation fund amended …

Hill v Zuda Pty Ltd [2022] HCA 21 (15 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Hore v The Queen [2022] HCA 22 (15 June 2022) (Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Criminal law – Sentencing – Indefinite detention – Release on licence – Where s 57 of Sentencing Act 2017 (SA) (“Act”) conferred upon Supreme Court of South Australia discretion to order that persons convicted of certain sexual offences be detained in custody until further order – Where s 59(1a)(a) of Act provided that person …

Hore v The Queen [2022] HCA 22 (15 June 2022) (Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Smith v The Council of Trinity Grammar School [2022] NSWCA 93 (14 June 2022) (Gleeson and Leeming JJA)

Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1981 – alleged perpetrator died before defendant on notice of any allegation – no other witnesses to assaults – many critical witnesses deceased or unavailable – absence of documents – no basis for grant of leave to appeal …

Smith v The Council of Trinity Grammar School [2022] NSWCA 93 (14 June 2022) (Gleeson and Leeming JJA) Read More »

Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 (09 June 2022) (Ward P, Meagher JA and Basten AJA)

Catchwords: JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – criminal jurisdiction – jurisdictional error – failure of judge to refer to submission of defendant – failure of judge to refer to absence of corroborative evidence – no basis for concluding judge mistook the extent or limits of his …

Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 (09 June 2022) (Ward P, Meagher JA and Basten AJA) Read More »

Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 (09 June 2022) (Collier, Bromwich and Lee JJ)

Catchwords: INDUSTRIAL LAW – application for judicial review – writs of certiorari and mandamus sought – where Full Bench confirmed a decision of a Deputy President of the Fair Work Commission determining the CFMMEU did not have standing to make an application for a bargaining order under s 229 of the Fair Work Act 2009 …

Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 (09 June 2022) (Collier, Bromwich and Lee JJ) Read More »

Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102 (09 June 2022) (Bromwich, Lee and Thawley JJ)

Catchwords: CONTEMPT OF COURT – where Registrar appointed by primary judge to continue conduct of contempt charges originally brought by special purpose liquidator after settlement of principle claim – whether a denial of procedural fairness because of an asserted lack of opportunity to be heard – whether there was power to appoint the Registrar to …

Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102 (09 June 2022) (Bromwich, Lee and Thawley JJ) Read More »

Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100 (08 June 2022) (Rangiah, SC Derrington and Abraham JJ)

Catchwords: INDUSTRIAL LAW – unfair dismissal – whether primary judge denied appellant opportunity to run his case – whether primary judge erred in failing to find inadequate translation at directions hearing denied appellant procedural fairness – whether findings made by primary judge relating to return to work plan and identity of employer supported by the …

Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100 (08 June 2022) (Rangiah, SC Derrington and Abraham JJ) Read More »

Alexander v Minister for Home Affairs [2022] HCA 19 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 36B of Australian Citizenship Act 2007 (Cth) provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if satisfied, among other matters, …

Alexander v Minister for Home Affairs [2022] HCA 19 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Thoms v Commonwealth of Australia [2022] HCA 20 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Detention of unlawful non‑citizens – Where applicant “unlawful non-citizen” within meaning of s 14(1) of Migration Act 1958 (Cth) – Where applicant detained by officers in purported exercise of s 189(1) of Migration Act …

Thoms v Commonwealth of Australia [2022] HCA 20 (08 June 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 (06 June 2022) (Farrell, Perry and Derrington JJ)

Catchwords: MIGRATION – where the Primary Judge dismissed an application for review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s Refugee visa – whether Tribunal failed to correctly apply Direction 90 issued pursuant to s …

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 (06 June 2022) (Farrell, Perry and Derrington JJ) Read More »

BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 (03 June 2022) (Ward P, Leeming, White and Brereton JJA, Basten AJA)

Catchwords: BUILDING AND CONSTRUCTION – adjudication – payment claim – existence of “one contract” rule – whether entitlement to serve payment claim must arise under one contract – whether “one contract” rule conditions validity of payment claim CONTRACTS – construction – where contract provided that each work order constituted a new agreement – whether there …

BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 (03 June 2022) (Ward P, Leeming, White and Brereton JJA, Basten AJA) Read More »

Irlam v Byrnes [2022] NSWCA 81 (03 June 2022) (Simpson AJA, N Adams and Cavanagh JJ)

Catchwords: JUDGMENTS AND ORDERS — Reasons — Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2) — Delivery of reasons subsequent to delivery of judgment — Delay APPEALS — From finding of fact — Impermissible inferences — Improper admission or rejection of evidence TORTS — Intentional torts — Trespass to the person — Battery — Statutory …

Irlam v Byrnes [2022] NSWCA 81 (03 June 2022) (Simpson AJA, N Adams and Cavanagh JJ) Read More »

Tucker v McKee [2022] FCAFC 98 (03 June 2022) (Allsop CJ, Kenny and Jagot JJ)

Catchwords: HIGH COURT AND FEDERAL COURT – federal jurisdiction – defamation – alleged defamatory imputations in email from first respondent to employees of second respondent – whether pleadings disclose matter within federal jurisdiction – whether respondents’ pleading of common law defence of qualified privilege based in part on legal duty or interest by reference to …

Tucker v McKee [2022] FCAFC 98 (03 June 2022) (Allsop CJ, Kenny and Jagot JJ) Read More »

Raghubir v Nicolopoulos [2022] FCAFC 97 (03 June 2022) (Allsop CJ, Kenny and Jagot JJ)

Catchwords: HIGH COURT AND FEDERAL COURT – appeal from single judge of the Federal Court – whether the Federal Court has jurisdiction to hear the appellants’ defamation claim – alleged defamatory publications made only within New South Wales – first respondent resident of New South Wales – other respondents being incorporated pursuant to the Strata …

Raghubir v Nicolopoulos [2022] FCAFC 97 (03 June 2022) (Allsop CJ, Kenny and Jagot JJ) Read More »

Zong v Wang [2022] NSWCA 80 (01 June 2022) (Leeming, White and Brereton JJA)

Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Whether conduct is “in trade or commerce” – Requirement that conduct is commercial in character – No requirement of an extant commercial operation – Negotiations may be commercial even though the setting is social CONSUMER LAW – Misleading or deceptive conduct – Whether primary judge erroneously …

Zong v Wang [2022] NSWCA 80 (01 June 2022) (Leeming, White and Brereton JJA) Read More »

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (01 June 2022) (Macfarlan, Brereton and Mitchelmore JJA)

Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1968 – where alleged perpetrator died before applicant on notice of allegation – where no other witnesses to alleged assault – where no documents dating back to or around the time of the alleged assault relating to allegation …

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (01 June 2022) (Macfarlan, Brereton and Mitchelmore JJA) Read More »

Kumar v Secretary, Department of Social Services [2022] FCAFC 95 (01 June 2022) (Perry, SC Derrington and Stewart JJ)

Catchwords: ADMINISTRATIVE LAW – appeal against decision to dismiss an appeal under the Administrative Appeals Tribunal Act 1975 (Cth) – appeal against decision to dismiss an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the primary judge erred in not finding a denial of natural justice – whether the primary judge …

Kumar v Secretary, Department of Social Services [2022] FCAFC 95 (01 June 2022) (Perry, SC Derrington and Stewart JJ) Read More »

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79 (31 May 2022) (Macfarlan JA)

Catchwords: COSTS – application for security for costs of appeal – respondent did not establish that there is reason to believe that the appellant will be unable to pay the costs of the appeal (see UPCR r 42.21(1)(d) and Corporations Act s 1335(1)) or that the appellant has divested assets with the intention of avoiding …

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79 (31 May 2022) (Macfarlan JA) Read More »

Barbieri v Pirovic [2022] NSWCA 76 (25 May 2022) (Gleeson and Mitchelmore JJA)

Catchwords: LEAVE TO APPEAL – whether extension of time should be granted – where significant delay of 10 months – where applicant had legal advice – where applicant’s earlier notice of appeal challenging principal judgment and costs orders dismissed as incompetent – where applicant now sought extension of time to challenge only costs orders – …

Barbieri v Pirovic [2022] NSWCA 76 (25 May 2022) (Gleeson and Mitchelmore JJA) Read More »

FKV17 v Minister for Home Affairs [2022] FCAFC 93 (25 May 2022) (Greenwood, Rangiah and Beach JJ)

Catchwords: MIGRATION – consideration of whether the Federal Circuit Court (the “primary court”) engaged in jurisdictional error in considering an application and ultimately exercising the discretion arising under s 477(2) of the Migration Act 1958 (Cth) (the “Act”) to extend (or not extend) the 35 day period within which an application must be made before …

FKV17 v Minister for Home Affairs [2022] FCAFC 93 (25 May 2022) (Greenwood, Rangiah and Beach JJ) Read More »

Hurley v Collector of Customs [2022] FCAFC 92 (24 May 2022) (Moshinsky, Banks-Smith and Colvin JJ)

Catchwords: TAXATION – customs duty – where the Collector of Customs served a demand for payment on the applicant under s 35A of the Customs Act 1901 (Cth) – where the relevant goods (alcoholic beverages) were the subject of a periodic settlement permission under which the goods could be delivered into home consumption without being …

Hurley v Collector of Customs [2022] FCAFC 92 (24 May 2022) (Moshinsky, Banks-Smith and Colvin JJ) Read More »

GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 91 (24 May 2022) (Rangiah, Markovic and Snaden JJ)

Catchwords: MIGRATION – appeal from an order of the Federal Court of Australia dismissing an application for judicial review – where the primary judge upheld a decision of the second respondent (Tribunal) to affirm a decision made by a delegate of the first respondent to refuse to grant a Bridging E visa to the appellant …

GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 91 (24 May 2022) (Rangiah, Markovic and Snaden JJ) Read More »

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89 (18 May 2022) (Markovic, Thawley and Cheeseman JJ)

Catchwords: MIGRATION – appeal from decision of primary judge to grant application for judicial review of Administrative Appeals Tribunal’s decision to affirm a decision of a delegate of the Minister not to revoke a mandatory visa cancellation – whether finding about health and rehabilitation services in Canada required evidence – whether no evidentiary material identified …

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89 (18 May 2022) (Markovic, Thawley and Cheeseman JJ) Read More »

Argo Managing Agency Ltd for and on behalf of the underwriting members of Lloyd’s Syndicate 1200 v Quintis Ltd (subject to deed of company arrangement) [2022] FCAFC 86 (19 May 2022) (Allsop CJ, Middleton and Yates JJ)

Catchwords: INSURANCE – directors and officers’ liability insurance – four policies of insurance – amount of cover for “Entity Securities Liability Optional Extension” (“Side C cover”) – whether Side C cover sub-limited to primary policy – whether policies should be rectified – whether up to $50 million in Side C cover – Lloyd’s insurance market …

Argo Managing Agency Ltd for and on behalf of the underwriting members of Lloyd’s Syndicate 1200 v Quintis Ltd (subject to deed of company arrangement) [2022] FCAFC 86 (19 May 2022) (Allsop CJ, Middleton and Yates JJ) Read More »

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 (18 May 2022) (Yates, Abraham and Cheeseman JJ)

Catchwords: CONSUMER LAW – misleading or deceptive conduct – contravention of ss 18, 29(1) and/or 34 of the Australian Consumer Law – part price representations in contravention of s 48(1) of the Australian Consumer Law – where appellant contended that primary judge erred in finding three of four representations were conveyed – Held: appeal dismissed. …

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 (18 May 2022) (Yates, Abraham and Cheeseman JJ) Read More »

Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V [2022] FCAFC 88 (18 May 2022) (Perram, Nicholas and Burley JJ)

Catchwords: PATENTS – where leave to appeal sought against primary judge’s decision dismissing appeal from decision of delegate of the Commissioner of Patents rejecting opposition to patent application on ground that the invention as claimed did not involve an inventive step – whether primary judge erred in assessment of expert evidence – whether primary judge …

Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V [2022] FCAFC 88 (18 May 2022) (Perram, Nicholas and Burley JJ) Read More »

Bazzi v Dutton [2022] FCAFC 84 (17 May 2022) (Rares, Rangiah and Wigney JJ)

Catchwords: APPEAL AND NEW TRIAL – test for determining whether primary judge erred in finding ordinary reasonable reader would understand defamatory publication conveyed imputation – whether appellant must demonstrate error in finding of fact or error in exercise of discretionary judgment – whether obiter dicta in Gatto v Australian Broadcasting Corporation [2022] VSCA 66 correct …

Bazzi v Dutton [2022] FCAFC 84 (17 May 2022) (Rares, Rangiah and Wigney JJ) Read More »

Heiner v Minister for Home Affairs [2022] FCAFC 81 (17 May 2022) (Katzmann, Beach and Goodman JJ)

Catchwords: ADMINISTRATIVE LAW — appeal from dismissal of application for judicial review of a decision of the Australian Human Rights Commission to cease inquiring into appellant’s complaint — where appellant’s Australian citizenship ceased in 1999 by operation of s 17 of the Australian Citizenship Act 1948 (Cth) — where Minister refused to grant appellant a …

Heiner v Minister for Home Affairs [2022] FCAFC 81 (17 May 2022) (Katzmann, Beach and Goodman JJ) Read More »

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82 (16 May 2022) (SC Derrington, O’Bryan and Abraham JJ)

Catchwords: MIGRATION – appeal from Federal Circuit of Australia dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm delegate’s decision not to revoke mandatory cancellation of visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – whether Tribunal failed to actively consider appellant’s representations – whether Tribunal failed to …

QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82 (16 May 2022) (SC Derrington, O’Bryan and Abraham JJ) Read More »

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 83 (16 May 2022) (Bromwich, Lee and Stewart JJ)

Catchwords: MIGRATION – appeal from decision of primary judge dismissing Mr Bethell’s application for habeas corpus –unlawful non-citizen – detention pending removal from Australia – where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained – where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – …

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 83 (16 May 2022) (Bromwich, Lee and Stewart JJ) Read More »

Ferdinands v Registrar Cridland [2022] FCAFC 80 (16 May 2022) (Charlesworth, Burley and Cheeseman JJ)

Catchwords: ADMINISTRATIVE LAW — concurrent appeals – appellant lodging documents for filing – Registrars rejecting the documents under r 2.26 of the Federal Court Rules 2011 (Cth) – primary judge dismissing applications for judicial review of the Registrars’ decisions —primary judge concluding that the Registrars did not err in characterising the documents as an abuse …

Ferdinands v Registrar Cridland [2022] FCAFC 80 (16 May 2022) (Charlesworth, Burley and Cheeseman JJ) Read More »

Mosaic Brands Ltd v Australian Communications and Media Authority [2022] FCAFC 79 (13 May 2022) (Collier, Abraham and Cheeseman JJ)

Catchwords: ADMINISTRATIVE LAW – whether primary judge erred in finding that a notice issued under s 522 of the Telecommunications Act 1997 (Cth) is subject to an implied entitlement disclosure condition – whether primary judge erred in finding that the notice issued by the Australian Communications and Media Authority (ACMA) complied with the implied entitlement …

Mosaic Brands Ltd v Australian Communications and Media Authority [2022] FCAFC 79 (13 May 2022) (Collier, Abraham and Cheeseman JJ) Read More »

Shepherd v Watt [2022] FCAFC 78 (13 May 2022) (Greenwood, Burley and Halley JJ)

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal and appeal from orders made dismissing an application for leave to file an amended cross-claim and to extend the time to file evidence – whether sufficient doubt to warrant reconsideration of the discretion to make the orders – whether primary judge’s exercise of his discretion …

Shepherd v Watt [2022] FCAFC 78 (13 May 2022) (Greenwood, Burley and Halley JJ) Read More »

Ashby v Commonwealth of Australia [2022] FCAFC 77 (12 May 2022) (Katzmann, Abraham and Goodman JJ)

Catchwords: ADMINISTRATIVE LAW – where s 65(1) of the Public Governance Performance and Accountability Act 1913 (Cth) (PGPA Act) permits the Finance Minister on behalf of the Commonwealth to authorise acts of grace payments if the Minister considers it appropriate to do so because of special circumstances — where appellant applied under the PGPA Act …

Ashby v Commonwealth of Australia [2022] FCAFC 77 (12 May 2022) (Katzmann, Abraham and Goodman JJ) Read More »

Darnell v Stonehealth Pty Ltd [2022] FCAFC 76 (11 May 2022) (Markovic, Thomas and Stewart JJ)

Catchwords: ADMINISTRATIVE LAW – appeal from Federal Court of Australia – where primary judge dismissed an application for judicial review brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) – where appellant seeks to quash the decisions of the Australian Community Pharmacy …

Darnell v Stonehealth Pty Ltd [2022] FCAFC 76 (11 May 2022) (Markovic, Thomas and Stewart JJ) Read More »

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 (11 May 2022) (Bromberg, Stewart and Goodman JJ)

Catchwords: MIGRATION – Appeal from application for judicial review of decision of the Administrative Appeals Tribunal affirming delegate’s decision to not revoke the cancellation of the appellant’s visa – where visa cancelled because of appellant’s criminal record – where visa mandatorily cancelled under s 501(3A) Migration Act 1958 (Cth) – whether “another reason” for revocation …

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 (11 May 2022) (Bromberg, Stewart and Goodman JJ) Read More »

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (11 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where plaintiff’s visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where plaintiff made representations seeking revocation of cancellation decision under s 501CA(4) – Where representations raised potential breach of Australia’s international non‑refoulement obligations – Where delegate of Minister decided …

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (11 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Fairbairn v Radecki [2022] HCA 18 (11 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Family law – De facto financial cause – Alteration of property interests – Meaning of “breakdown of de facto relationship” – Where appellant and respondent had been in de facto relationship and resided in appellant’s home – Where appellant and respondent agreed to keep assets strictly separate – Where appellant subsequently suffered rapid cognitive …

Fairbairn v Radecki [2022] HCA 18 (11 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 (10 May 2022) (Rangiah, Downes and McElwaine JJ)

Catchwords: INDUSTRIAL LAW – appeal from a decision of the Federal Circuit Court of Australia – where primary judge held that the first and second respondents contravened s 535 of the Fair Work Act 2009 (Cth) and otherwise dismissed the application with no order imposing pecuniary penalties – whether the primary judge erred by not …

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 (10 May 2022) (Rangiah, Downes and McElwaine JJ) Read More »

BioGiene Pty Limited v Mullan [2022] FCAFC 73 (09 May 2022) (Charlesworth, O’Callaghan and Snaden JJ)

Catchwords: INDUSTRIAL LAW – award coverage – appellant employed respondent as cleaner in abattoir under the terms of the Meat Industry Award 2010 (“MIA”) – respondent applied to South Australian Employment Court (“SAEC”) alleging failure by appellant to comply with the Cleaning Services Award 2010 (“CSA”) – SAEC held respondent’s employment covered by the CSA …

BioGiene Pty Limited v Mullan [2022] FCAFC 73 (09 May 2022) (Charlesworth, O’Callaghan and Snaden JJ) Read More »

S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd [2022] NSWCA 72 (06 May 2022) (Macfarlan, Leeming and White JJA)

Catchwords: CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be …

S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd [2022] NSWCA 72 (06 May 2022) (Macfarlan, Leeming and White JJA) Read More »

CKL21 v Minister for Home Affairs [2022] FCAFC 70 (05 May 2022) (Moshinsky, O’Bryan and Cheeseman JJ)

Catchwords: MIGRATION – decision of the Minister not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – whether decision of the Minister affected by jurisdictional error – where Minister made a finding that “Australia has a low tolerance of criminal conduct for people… who have been participating in, …

CKL21 v Minister for Home Affairs [2022] FCAFC 70 (05 May 2022) (Moshinsky, O’Bryan and Cheeseman JJ) Read More »

EXT20 v Minister for Home Affairs [2022] FCAFC 72 (05 May 2022) (Mortimer, Wigney and Snaden JJ)

Catchwords: MIGRATION – appeal – refusal to revoke mandatory cancellation of appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where appellant made representations about risk of harm if returned to country of nationality – representations made within the prescribed period but after receipt of a notice under s 501CA(3) that misrepresented …

EXT20 v Minister for Home Affairs [2022] FCAFC 72 (05 May 2022) (Mortimer, Wigney and Snaden JJ) Read More »

Twigg v Twigg [2022] NSWCA 68 (04 May 2022) (Bell CJ, Payne and Brereton JJA)

Catchwords: EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts …

Twigg v Twigg [2022] NSWCA 68 (04 May 2022) (Bell CJ, Payne and Brereton JJA) Read More »

Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69 (04 May 2022) (Yates, Moshinsky and Rofe JJ)

Catchwords: PATENTS – alleged infringement by supply of products – s 117 of the Patents Act 1990 (Cth) – staple commercial product – whether essential oil derived from the shrub Kunzea ambigua was a staple commercial product – where the primary judge found that the oil was a staple commercial product – whether the primary …

Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69 (04 May 2022) (Yates, Moshinsky and Rofe JJ) Read More »

Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 (04 May 2022) (Bromberg, Rangiah and Bromwich JJ)

Catchwords: INDUSTRIAL LAW – employer appeal – adverse action – decision of Qantas to outsource ground handling operations during COVID-19 pandemic – appeal from the decision of the primary judge finding that Qantas Airways Ltd contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) – construction of s 340(1)(b) of the FW …

Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 (04 May 2022) (Bromberg, Rangiah and Bromwich JJ) Read More »

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (04 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)

Catchwords: Constitutional law (Cth) – Chapter III – Where respondent’s complaint made under Anti‑Discrimination Act 1998 (Tas) (“State Act”) was referred to Anti-Discrimination Tribunal (“Tribunal”) – Where appellants in defence asserted provisions in State Act inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth) – Where Tribunal …

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (04 May 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) Read More »

Li v Liu [2022] NSWCA 67 (29 April 2022) (Meagher, White and Beech-Jones JJA)

Catchwords: RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director …

Li v Liu [2022] NSWCA 67 (29 April 2022) (Meagher, White and Beech-Jones JJA) Read More »

Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66 (29 April 2022) (Jagot, Charlesworth and O’Bryan JJ)

Catchwords: NATIVE TITLE – where the first respondent intends to grant a mineral lease (ML 29881) to the third respondent under the Mineral Titles Act 2010 (NT) – where land subject to the proposed lease would be used for the construction of a “dredge spoil emplacement area” to deposit dredged material from a loading facility …

Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66 (29 April 2022) (Jagot, Charlesworth and O’Bryan JJ) Read More »

Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 (26 April 2022) (Macfarlan and Gleeson JJA, Simpson AJA)

Catchwords: CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – …

Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 (26 April 2022) (Macfarlan and Gleeson JJA, Simpson AJA) Read More »

Garner v Central Innovation Pty Limited [2022] FCAFC 64 (21 April 2022) (Charlesworth, Stewart and Halley JJ)

Catchwords: INDUSTRIAL LAW – appeal from decision of primary judge that judgment and verdict be entered in favour of respondents in respect of 36 customers lost due to actions of appellant – whether primary judge wrongly departed from the case pleaded by the appellant – whether primary judge erred in finding that respondents established loss …

Garner v Central Innovation Pty Limited [2022] FCAFC 64 (21 April 2022) (Charlesworth, Stewart and Halley JJ) Read More »

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (21 April 2022) (Gordon J)

Catchwords: Immigration – Refugees – Application for protection visa – Where plaintiff invited to attend protection visa interview in Melbourne – Where delegate of Minister sent plaintiff letters under ss 56 and 57 of Migration Act 1958 (Cth) requesting further information and inviting plaintiff to comment on information – Where plaintiff lived in Sydney, suffered …

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (21 April 2022) (Gordon J) Read More »

State of Escape Accessories Pty Limited v Schwartz [2022] FCAFC 63 (20 April 2022) (Greenwood, Nicholas and Anderson JJ)

Catchwords: COPYRIGHT – carry-all bag designed by director of appellant – whether copyright subsists in carry-all bag as a work of artistic craftsmanship – meaning of “work of artistic craftsmanship” – relevance of functionality and aesthetics – consideration of the extent to which any artistic expression in the form of the carry-all bag is constrained …

State of Escape Accessories Pty Limited v Schwartz [2022] FCAFC 63 (20 April 2022) (Greenwood, Nicholas and Anderson JJ) Read More »

Nyoni v Bird [2022] FCAFC 61 (14 April 2022) (Mortimer, Rofe and McElwaine JJ)

Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of the primary judge dismissing an application for review of a decision of the Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) – whether the primary judge erred in finding that the Court …

Nyoni v Bird [2022] FCAFC 61 (14 April 2022) (Mortimer, Rofe and McElwaine JJ) Read More »

Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (14 April 2022) (Bell CJ, White JA and Harrison J)

Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the …

Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (14 April 2022) (Bell CJ, White JA and Harrison J) Read More »

The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 (14 April 2022) (Basten, Macfarlan and Gleeson JJA)

Catchwords: APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a …

The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 (14 April 2022) (Basten, Macfarlan and Gleeson JJA) Read More »

Camenzuli v Morrison (No 2) [2022] NSWCA 62 (14 April 2022) (Basten, Leeming and Payne JJA)

Catchwords: COSTS – party/party – award in favour of jointly represented active defendants against unsuccessful plaintiff – claim by non-active defendants in same interest – principle favouring single award where parties in same interest – claim by proposed defendants on joinder motion which lapsed with rejection of primary claim – whether plaintiff should pay costs …

Camenzuli v Morrison (No 2) [2022] NSWCA 62 (14 April 2022) (Basten, Leeming and Payne JJA) Read More »

Commissioner of Patents v Thaler [2022] FCAFC 62 (13 April 2022) (Allsop CJ, Nicholas, Yates, Moshinsky and Burley JJ)

Catchwords: PATENTS – artificial intelligence – where Patents Regulations 1991 (Cth) require name of the inventor to be provided in application under the Patent Cooperation Treaty – where patent application named DABUS, an artificial intelligence machine, as inventor – where parties agreed that the invention described in the patent application was the output of the …

Commissioner of Patents v Thaler [2022] FCAFC 62 (13 April 2022) (Allsop CJ, Nicholas, Yates, Moshinsky and Burley JJ) Read More »

KTC v David [2022] FCAFC 60 (13 April 2022) (Wigney, Anastassiou and Jackson JJ)

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – whether decision of primary judge attended by sufficient doubt to warrant grant of leave – whether substantial injustice would result from a refusal of leave – where interlocutory orders have practical effect of finally determining the rights of a party to proceeding – whether …

KTC v David [2022] FCAFC 60 (13 April 2022) (Wigney, Anastassiou and Jackson JJ) Read More »

Jandson Pty Ltd v Edmonds [2022] NSWCA 61 (13 April 2022) (Bell CJ, Macfarlan and White JJA)

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to …

Jandson Pty Ltd v Edmonds [2022] NSWCA 61 (13 April 2022) (Bell CJ, Macfarlan and White JJA) Read More »