FCAFC

Catchwords: MIGRATION – power to cancel visa under s 501BA(2) of the Migration Act 1958 (Cth) – whether satisfied cancellation was in the “national interest” – whether decision-maker required to take into account impact of unenacted international treaty obligations – whether decision in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 …

NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187 (01 December 2023) (Collier, Derrington and Downes JJ) Read More »

Catchwords: INSURANCE – determination of separate question – leave to appeal – whether relief sought advisory or hypothetical – construction of design and construction professional indemnity insurance policy – whether insuring clause limited to claims for civil liability based on the insureds personal provision of professional services – whether extension to the insuring clause limited …

Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188 (01 December 2023) (Lee, Stewart and Cheeseman JJ) Read More »

Catchwords: MIGRATION – appeal from decision of the Federal Court of Australia – where appellant suffered from severe mental health condition – whether the Tribunal acted under dictation from a decision of an earlier Tribunal – whether Tribunal erred in finding that the appellant would not suffer harm and would not face significant impediments upon …

BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184 (30 November 2023) (Yates, Raper and Jackman JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – appeals from interlocutory decision refusing to set aside subpoenas and part of notice to produce – whether the primary judge erred by expressing the issue of apparent relevance as being whether the documents “could possibly throw light on the issues that arise” – relevant principles for assessing the validity of …

Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185 (30 November 2023) (Wheelahan, Anderson and Jackman JJ) Read More »

Catchwords: INSURANCE – indemnity sought pursuant to public and product liability insurance policy – claim in relation to collision of mining equipment with bridge – where parties accepted insuring clause responds to claim – proper construction of “write-backs” to an exclusion clause – where primary judge did not err in finding appellant liable to indemnify …

XL Insurance Company Se, trading as Brooklyn Underwriting v Kerembla Pty Ltd [2023] FCAFC 183 (23 November 2023) (Lee, Stewart and Cheeseman JJ) Read More »

Catchwords: COSTS – application for leave to appeal against a lump sum costs determination – applicable principles and procedure for the determination of lump sum costs – whether primary judgment is attended with sufficient doubt – whether a refusal of leave to appeal would occasion substantial injustice – where the application for leave to appeal …

Jadwan Pty Ltd v Rae & Partners (A Firm) [2023] FCAFC 182 (17 November 2023) (Markovic, Stewart and Anderson JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – where special case stated for consideration by Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth) – whether final orders should be made reflecting the answers to the case stated – proceeding dismissed

Catchwords: CONSUMER LAW – representative proceedings – alleged defects in motor vehicles by reason of deficiencies in transmission system – where primary judge found affected vehicles were not of acceptable quality when supplied to consumers contrary to the guarantee in s 54 Australian Consumer Law – whether primary judge applied statutory test – the meaning …

Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179 (14 November 2023) (Yates, Beach and Downes JJ) Read More »

Catchwords: INDUSTRIAL LAW – appeal from decision of the Federal Court of Australia (“FCA”) – right of union official “permit holder” to enter employer’s premises for the purpose of holding discussions – refusal of entry – hindrance or obstruction of permit holder exercising rights under pt 3-4 of the Fair Work Act 2009 (Cth) – …

Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2023] FCAFC 180 (14 November 2023) (Bromberg, Rangiah and Snaden JJ) Read More »

Catchwords: PATENTS – where invention claimed is a safety system for protection against falling drill rods in mining industry – construction – meaning of ‘anchor member’ – meaning of ‘configured to be fixed in a proximal end region of the bore’ PATENTS – infringement – whether First Respondent’s product included an anchor member – whether …

Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2023] FCAFC 178 (13 November 2023) (Perram, Nicholas and McElwaine JJ) Read More »

Catchwords: MIGRATION – whether Tribunal misapplied the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), because Tribunal treated appellant’s subjective fear of harm as a relevant element of the complementary protection criterion – whether Tribunal fell into error because it had regard to subjective fear of harm in considering the complementary …

DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 177 (10 November 2023) (Perry, Abraham and Goodman JJ) Read More »

Catchwords: COSTS – where successful intervener seeks his costs of the appeal – where intervention was necessary, efficient and of considerable assistance – appellant to pay costs of the respondents and intervener

Catchwords: PRACTICE AND PROCEDURE — appeal and new trial – apprehended bias – where some time prior to trial the primary judge found the second appellant guilty of contempt of court and sentenced him to a term of imprisonment – where before trial the appellants made an application to the judge that he disqualify himself …

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 (03 November 2023) (Wigney, Wheelahan and Abraham JJ) Read More »

Catchwords: TRADE MARKS – where appellant’s trade mark registered in respect of services comprising (inter alia) issuing halal certifications to businesses and individuals for goods and services if religious and technical requirements are met (“the registered services”) – whether primary judge erred in finding that the respondents’ use of a logo on their packaging (“the …

Halal Certification Authority Pty Limited v Flujo Sanguineo Holdings Pty Limited [2023] FCAFC 175 (02 November 2023) (Nicholas, Burley and Cheeseman JJ) Read More »

Catchwords: MIGRATION – Migration Act 1958 (Cth) – where Administrative Appeals Tribunal affirmed the Minister’s decision not to revoke cancellation of visa – where primary judge found no jurisdictional error – whether the Tribunal overlooked “health” issue under para 9.2 of Direction 90 – where appellant did not articulate any health issues – whether a …

Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 (01 November 2023) (Logan, Rangiah and Markovic JJ) Read More »

Catchwords: INDUSTRIAL LAW – Enterprise Agreements – appeal by two teachers (school employees) against decision to dismiss an application for back pay for increases to their pay and entitlements under an enterprise agreement commencing during their employment but coming into effect after their respective resignations – where employees sought declarations under s 545 of the …

Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172 (30 October 2023) (Collier, Logan and Meagher JJ) Read More »

Catchwords: COSTS – application for indemnity costs against appellant’s solicitor – whether appropriate to order that solicitor personally bears costs under s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth) – application dismissed

Catchwords: MIGRATION – appeal from judgment and orders dismissing application for judicial review of decision of Administrative Appeals Tribunal not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – where appellant alleged decision of Tribunal affected by jurisdictional errors – where challenge to decision included collateral attack on …

Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 (20 October 2023) (Katzmann, O’Bryan and McElwaine JJ) Read More »

Catchwords: MIGRATION – Application for writ of habeas corpus and declaration that item 4 of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) is invalid – where previous Full Court judgment held cancellation of applicant’s visa invalid as applicant’s aggregate sentence of 12 months’ imprisonment not within scope of s 501(7)(c) …

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167 (19 October 2023) (Katzmann, Sarah C Derrington and Kennett JJ) Read More »

Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of delegate to mandatorily cancel visa pursuant to s 501(3A) of Migration Act 1958 (Cth) (Act) – whether Tribunal misunderstood and so misapplied para 9.4.2 of Direction 90 when considering effect of cancellation of applicant’s visa on Australian business …

JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 (19 October 2023) (Katzmann, Sarah C Derrington and Kennett JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – form of orders to be made following judgment of the Full Court

Catchwords: INDUSTRIAL LAW – adverse action – appeal – where the respondent made a number of complaints and/or inquiries about his employment, commenced proceedings in the Fair Work Commission and took personal leave – where the respondent was found to have been dismissed from his employment in contravention of s 340(1) of Fair Work Act …

Monash Health v Singh [2023] FCAFC 166 (16 October 2023) (Katzmann, Snaden and Raper JJ) Read More »

Catchwords: REPRESENTATIVE PROCEEDINGS – question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – whether Court has power pursuant to s 33V of FCA Act to make a “common fund order” upon settlement of proceeding – where no such order has yet been sought – anterior questions of …

Elliott-Carde v McDonald’s Australia Limited [2023] FCAFC 162 (12 October 2023) (Beach, Lee and Colvin JJ) Read More »

Catchwords: INDUSTRIAL LAW – registered organisations – where trade union officials elected to office and employed under rules registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – where officials charged with “gross misbehaviour” as an official under rule made pursuant to rule-making power in s 141(1)(c)(iii) of Act after criticising union in media …

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 (11 October 2023) (Rares Acj, Katzmann and Colvin JJ) Read More »

Catchwords: INDUSTRIAL LAW – appeal from decision of the Federal Court of Australia – unlawful picketing – pecuniary penalties – principles to be applied – whether primary judge erred in assessing wrongdoing by reference to availability of lawful alternative remedy – whether penalties manifestly excessive – whether conduct was objectively serious – whether conduct was …

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161 (09 October 2023) (Charlesworth, Snaden and Raper JJ) Read More »

Catchwords: COSTS – application for leave to appeal a costs order – whether leave to appeal should be granted – whether primary judgment attended by sufficient doubt – whether adequate reasons given by primary judge – where delay in giving judgment – whether primary judge erred in concluding that first respondent’s resistance of the proceeding …

Kitchen v Director of Professional Services Review [2023] FCAFC 160 (03 October 2023) (Charlesworth, Sarah C Derrington and Downes JJ) Read More »

Catchwords: PATENTS – construction – whether the primary judge erred in construction of “downhole equipment” and “downhole gathering data system” as excluding equipment for use in holes drilled for oil and gas exploration and production and wireline telemetry equipment – whether primary judge erred in construing the phrases “electromagnetic signal direction altering means”, “reflector” and …

Reflex Instruments Asia Pacific Pty Ltd v Globaltech Corporation Pty Ltd [2023] FCAFC 158 (29 September 2023) (Moshinsky, Burley and Kennett JJ) Read More »

Catchwords: MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – meaning of “family violence”, “family” and “member of the person’s family” in Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA considered – whether …

Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157 (28 September 2023) (O’Callaghan, Goodman and Kennett JJ) Read More »

Catchwords: MIGRATION – where appellant’s visa was cancelled under s 501CA(4) of the Migration Act 1958 (Cth) – where an appeal of the Administrative Appeals Tribunal affirmed a decision of a delegate not to revoke the cancellation – where an application for judicial review of the Tribunal’s decision was dismissed by a judge of this …

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159 (28 September 2023) (Rares, Bromwich and Raper JJ) Read More »

Catchwords: CONSUMER LAW – whether primary judge erred in finding respondents had proved words spoken with a sufficient degree of precision to enable Court to be satisfied they were misleading – where promise made to “honour the deal” or pay “the balance” between non-binding heads of agreement and sale agreement did not specify sum of …

Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 (26 September 2023) (Lee, Button and Jackman JJ) Read More »

Catchwords: CONSUMER LAW – misleading and deceptive conduct – whether statements made before entry into a shareholders agreement and the fact of such entry conveyed a representation that a contracting party was capable of performing its obligations under the shareholders agreement within a particular timeframe – whether such a representation, if conveyed, was misleading or …

O’Mara Holdings Pty Ltd v The Patch Australia Pty Ltd [2023] FCAFC 154 (13 September 2023) (Markovic, Halley and Goodman JJ) Read More »

Catchwords: MIGRATION – whether the primary judge erred in finding that the appellant had been “refused” a protection visa within the meaning of s 48A of the Migration Act 1958 (Cth) – where the Administrative Appeals Tribunal’s affirmation of that refusal had been substituted by the Assistant Minister granting the appellant a different visa under …

FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153 (12 September 2023) (Snaden, Abraham and Halley JJ) Read More »

Catchwords: MIGRATION – where mandatory cancellation of visa on character grounds – appeal of Administrative Appeals Tribunal affirmed a decision of a delegate not to revoke the cancellation – where an application for judicial review of the Tribunal’s decision was dismissed by a judge of this Court – where appellant sought leave to raise appeal …

King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 (08 September 2023) (Anderson, Feutrill and Raper JJ) Read More »

Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of the Full Bench of the Fair Work Commission dismissing applicant’s application under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) for secret ballot to be held to decide whether the Manufacturing Division of respondent Union should withdraw from that Union …

O’Connor v Construction, Forestry, Mining, Maritime and Energy Union [2023] FCAFC 151 (08 September 2023) (Rangiah, Wheelahan and Raper JJ) Read More »

Catchwords: CONTRACTS – contract of carriage of goods by sea – formation – whether contract was concluded by way of fixture recap email – construction of recap emails – where recap provided that terms were otherwise as per carrier’s standard form booking note and bill of lading including rider clauses but with English law and …

Poralu Marine Australia Pty Ltd v Mv Dijksgracht [2023] FCAFC 147 (08 September 2023) (Rares, Sarah C Derrington and Feutrill JJ) Read More »

Catchwords: MIGRATION – appeal from dismissal of application for judicial review of decision of Administrative Appeal Tribunal affirming revocation decision pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where Tribunal weighed appellant’s criminal conduct against strength, nature and duration of appellant’s ties to Australia – whether Tribunal “double-counted” appellant’s offending by weighing …

Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148 (07 September 2023) (Markovic, Sarah C Derrington and Feutrill JJ) Read More »

Catchwords: TRUSTS AND TRUSTEES – where second respondent (QNI) was former trustee of assets of a joint venture between second and third appellants – whether primary judge erred in finding that the claim by the liquidators of QNI (GPLs) for the funding premium the subject of the litigation funding agreement dated 13 September 2016 between …

Queensland Nickel Sales Pty Ltd v Park in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq) [2023] FCAFC 150 (06 September 2023) (Markovic, Banks-Smith and Halley JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – appeal from decision of trial judge in proceedings where former employees colluded with suppliers to misappropriate Appellant’s business – whether trial judge erred in dismissing proceedings against Respondents – where Appellant submitted that findings made against Respondents sufficient to constitute copyright infringement and use of confidential information – whether allegations …

Directed Electronics OE Pty Ltd v Gridtraq Australia Pty Ltd [2023] FCAFC 149 (06 September 2023) (Perram, Downes and Button JJ) Read More »

Catchwords: CORPORATIONS – application for leave to appeal and appeal from interlocutory decision of single judge – where the appellant, a director of a company in liquidation, filed an affidavit in Supreme Court of New South Wales proceedings commenced by the Deputy Commissioner of Taxation to recover tax-related liabilities including directors penalties for which he …

Mandalinic v Stone (Liquidator) [2023] FCAFC 146 (04 September 2023) (Stewart, McElwaine and Button JJ) Read More »

Catchwords: CORPORATIONS – whistleblower claim under Pt 9.4AAA of Corporations Act 2001 (Cth) – whether s 1644 of the Corporations Act extends application of ss 1317AD and 1317AE of the Corporations Act to detrimental conduct engaged in prior to amendments under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) – whether Item 16 …

Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132 (30 August 2023) (Moshinsky, Abraham and Raper JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal interlocutory order – moneys paid into court to discharge freezing orders – application that moneys be paid out of court – allegation of material non-disclosure upon ex parte application for freezing order – allegation of maladministration by the Deputy Commissioner of Taxation – disputed application …

Widdup v Deputy Commissioner of Taxation [2023] FCAFC 145 (24 August 2023) (Logan, Wheelahan and Hespe JJ) Read More »

Catchwords: MIGRATION – appeal – whether leave to argue new grounds ought be granted – Direction No. 90 – whether Tribunal misconstrued the phrase “vulnerable members of the community” in para 8.4(2)(c) of the Direction – whether Tribunal’s error material – where Tribunal concluded the appellant engaged in “violent and serious” conduct and that the …

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144 (25 August 2023) (Stewart, Feutrill and Hespe JJ) Read More »

Catchwords: REPRESENTATIVE PROCEEDINGS – application for extension of time and leave to appeal decision of single judge dismissing representative proceedings brought under Part IVA of Federal Court of Australia Act 1976 (Cth) – whether decision was interlocutory in character – where the representative applicant is unrepresented – where applicant disputes the manner in which the …

Paschke v Secretary, Department of Social Services [2023] FCAFC 143 (24 August 2023) (Anderson, McEvoy and Hespe JJ) Read More »

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of Federal Circuit and Family Court of Australia (Division 2) – where transfers made by a person who later became bankrupt from his current account to a loan account held by a company – whether the transfers may be avoided on the basis that each transfer constituted …

Roufeil as Trustee of the Bankrupt Estate of Tarrant v Tarrant Enterprises Pty Ltd as Trustee for the MRT Family Trust [2023] FCAFC 142 (23 August 2023) (Derrington, Abraham and Jackman JJ) Read More »

Catchwords: MIGRATION – appeal – where mandatory cancellation of appellant’s Class XB Subclass 202 Global Humanitarian visa on character grounds – where the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister not to revoke the cancellation – where an application for judicial review of the Tribunal’s decision was dismissed by a …

MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 141 (22 August 2023) (WHEELAHAN, JACKSON AND FEUTRILL JJ) Read More »

Catchwords: ENVIRONMENT LAW – appeal of decision dismissing application for judicial review of decision to approve a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – where proposal involving clearing of vegetation likely to impact listed threatened species and ecological communities – whether certain conditions of approval had effect of postponing …

Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139 (22 August 2023) (Jackson, Feutrill and Kennett JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal against costs order – consideration of whether leave to appeal is required for costs appeals – held leave required for costs appeals – leave to appeal refused PRACTICE AND PROCEDURE – where applicant claims primary Judge erred in misapplying principles and misunderstanding evidence in relation …

Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140 (22 August 2023) (Colvin, Stewart and Feutrill JJ) Read More »

Catchwords: MIGRATION – appeal – Direction No. 90 – whether Tribunal took the “other considerations” into account – whether Tribunal engaged in required evaluative exercise of weighing or balancing the considerations identified as being relevant to the decision whether there is “another reason” to revoke the cancellation of the appellant’s visa – failure of Tribunal …

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (22 August 2023) (Colvin, Stewart and Jackson JJ) Read More »

Catchwords: ADMINISTRATIVE LAW – Privacy – appeal from dismissal of application to review decision of Australian Information Commissioner (AIC) not to investigate complaint – where appellant alleged officers within the Australian Taxation Officer made disclosures of protected information during an investigation contrary to the Privacy Act 1988 (Cth) – whether disclosures authorised by Ch 5, …

McEwan v Office of the Australian Information Commissioner [2023] FCAFC 137 (18 August 2023) (Charlesworth, Sarah C Derrington and Meagher JJ) Read More »

Catchwords: DEFENCE AND WAR – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – officer’s retention considered not to be in the interests of the Defence Force – whether delegate required to take into account annual personal performance reports – whether …

Fulton v Chief of Defence Force [2023] FCAFC 134 (18 August 2023) (Logan, Sarah C Derrington and Stewart JJ) Read More »

Catchwords: CORPORATIONS – conflicted remuneration – Div 4 of Pt 7.7A of the Corporations Act 2001 (Cth) (Act) – where the first respondent (CBA) and the second respondent (CFSIL) entered into arrangements whereby CFSIL would develop and manage, and CBA would distribute, a superannuation product – where CFSIL agreed to pay a proportion of net …

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2023] FCAFC 135 (17 August 2023) (Moshinsky, O’Bryan and Jackman JJ) Read More »

Catchwords: MIGRATION – appeal – judicial review – refusal to revoke cancellation of the appellant’s visa – appellant made a representation that removal would place him at a considerable risk of suicide – whether Minister failed to engage with that representation in the requisite manner – appeal dismissed

Catchwords: DEFAMATION – where comments were made during an oral interview broadcast on national television – where it was pleaded that the interview conveyed imputations that the respondent sexually abused a female staffer in his parliamentary office (fourth imputation), and that the respondent physically assaulted someone without provocation (sixth imputation) – appeal from the primary …

Hanson v Burston [2023] FCAFC 124 (16 August 2023) (Wigney, Wheelahan and Abraham JJ) Read More »

Catchwords: ADMINISTRATIVE LAW – Citizenship – appeal from declaration of primary judge of this Court – where primary judge declared that Australian-born child of foreign nationals had been an Australian citizen since his 10th birthday by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) – where parents had resided in Australia for …

Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133 (15 August 2023) (Logan, Burley and McEvoy JJ) Read More »

Catchwords: MIGRATION – s 501(3) of the Migration Act 1958 (Cth) – where the Minister determined to exercise his discretion to cancel the appellant’s visa – where the primary judge dismissed the application for judicial review of the Minister’s decision – whether the Minister failed to consider whether to consider unsolicited material provided by the …

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130 (15 August 2023) (Abraham, O’Sullivan and Raper JJ) Read More »

Catchwords: APPEAL AND NEW TRIAL – NATIVE TITLE – appeal from orders made on overlapping native title determination applications – claims brought on behalf of the Arabana people and the Walka Wani people – trial judge finding the ancestors of the Arabana people occupied the overlap area at sovereignty – trial judge concluding the Arabana …

Stuart v State of South Australia [2023] FCAFC 131 (14 August 2023) (Rangiah, Charlesworth and O’Bryan JJ) Read More »

Catchwords: TAXATION – luxury car tax – goods and services tax – appeal from decision of primary judge which held that cars were used and intended to be used for a purpose in addition to being held as trading stock – where cars exhibited in “Gosford Classic Car Museum” – where cars were generally available …

Automotive Invest Pty Limited v Commissioner of Taxation [2023] FCAFC 129 (11 August 2023) (Logan, Wheelahan and Hespe JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – appeal – parties compromised proceeding after delivery of judgment and before final orders made – whether appropriate to make orders setting aside all orders of primary judge and dismissing the proceedings – held such orders appropriate – orders made in accordance with parties’ proposed consent orders

Catchwords: COSTS – where appeal was dismissed – where issue was raised by Court regarding jurisdiction – further submissions invited and matter listed for a second day – where court determined that it had jurisdiction – appellants ordered to pay respondents’ costs – where second respondent was not an active party – where appellants applied …

AgriWealth Capital Limited v Australian Financial Complaints Authority Limited (No 2) [2023] FCAFC 128 (10 August 2023) (Perry, Downes and Kennett JJ) Read More »

Catchwords: ADMINISTRATIVE LAW – privacy – appeal from dismissal of application for judicial review of decision of Australian Information Commissioner (AIC) – where AIC found in favour of appellant and awarded compensation – where appellant sought an order that CEO of Amazon apologise – whether AIC failed to consider appellant’s submission in respect of the …

Saffari v Australian Information Commissioner [2023] FCAFC 127 (10 August 2023) (Sarah C Derrington, Stewart and Abraham JJ) Read More »

Catchwords: MIGRATION – appeal from orders dismissing application for judicial review of a decision of the Minister for Home Affairs revoking a decision to cancel appellant’s visa – where primary judge found that the Minister erred in her findings – where primary judge found that the Minister failed to engage with appellant’s representations – whether …

Masi-Haini v Minister for Home Affairs [2023] FCAFC 126 (09 August 2023) (Markovic, Meagher and Kennett JJ) Read More »

Catchwords: MIGRATION – reg 5.19 of the Migration Regulations 1994 (Cth) – appeal from a single judge of the former Federal Circuit Court of Australia – primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – appellant applied for a Regional Employer Nomination (subclass 187) visa – the …

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (07 August 2023) (Charlesworth, O’Sullivan and Raper JJ) Read More »

Catchwords: MIGRATION – appeal from a decision of the primary judge refusing the appellant’s application for review of a visa cancellation pursuant to s 476A of the Migration Act 1958 (Cth) (Act) – where appellant’s visa was cancelled pursuant to s 501(3)(b) of the Act on the basis that the appellant does not pass the …

Lewer v Minister for Home Affairs [2023] FCAFC 121 (04 August 2023) (Nicholas, O’Callaghan and McElwaine JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – remitter – residual claim for compensation by representative applicant and claim for relief remitted to trial Judge – balance of the proceedings remitted for case management – orders made

Catchwords: ADMINISTRATIVE LAW – appeal from judgment and orders allowing an appeal from a decision of the Administrative Appeals Tribunal on a question of law – whether primary judge erred in his interpretation of s 29(1) of the Mutual Recognition Act 1991 (Cth) and meaning of “activities authorised to be carried out under each registration” …

Victorian Building Authority v Cau [2023] FCAFC 120 (31 July 2023) (Katzmann, Jackson and Feutrill JJ) Read More »

Catchwords: COSTS – determination of costs of and incidental to appeal – where appeal allowed – where appellants’ interlocutory application dismissed and costs awarded to respondents – whether to apportion costs of appeal and costs in the court below between respondents on the appeal – whether to carve out costs of an issue on which …

Sino Group International Limited v Toddler Kindy Gymbaroo Pty Ltd (in liq) (Final Orders) [2023] FCAFC 119 (28 July 2023) (Farrell, Cheeseman and Feutrill JJ) Read More »

Catchwords: ADMINISTRATIVE LAW – where the Australian Financial Complaints Authority Limited (‘AFCA’) determined that the second respondent’s complaint was partially within the Australian Financial Complaints Authority Complaint Resolution Scheme Rules – where the appellants contended that AFCA did not have jurisdiction to determine the complaint – appeal from decision of primary judge that AFCA had …

AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2023] FCAFC 118 (28 July 2023) (Perry, Downes and Kennett JJ) Read More »

Catchwords: MIGRATION – Migration Act 1958 (Cth) – where Administrative Appeals Tribunal affirmed the Minister’s decision not to revoke cancellation of visa – where primary judge found no jurisdictional error – whether the Tribunal overlooked “health” issue under para 9.2 of Direction 90 – whether the Tribunal denied the appellant procedural fairness – construction of …

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 (26 July 2023) (Logan, Rangiah and Goodman JJ) Read More »

Catchwords: CORPORATIONS – misleading or deceptive conduct in relation to financial services – accessorial liability – where the applicant alleged at first instance that two companies (TM Index and TMK Index) made representations to potential investors that the companies’ investments were legitimate and regulated by the Australian Securities and Investments Commission – where the real …

Kim v Wang [2023] FCAFC 115 (25 July 2023) (Moshinsky, Lee and Jackman JJ) Read More »

Catchwords: DEFAMATION – appeal against primary judge’s findings that no imputations conveyed in trial by judge alone – whether primary judge erred in finding that imputations not conveyed – appeal dismissed

Catchwords: PRACTICE AND PROCEDURE – costs – where two taxation proceedings were heard together at first instance and on appeal – where the Commissioner was successful in both proceedings at first instance – where the taxpayer appealed and was unsuccessful in the first appeal but successful in the second appeal on a procedural issue that …

Bblood Enterprises Pty Ltd v Commissioner of Taxation [2023] FCAFC 114 (21 July 2023) (Moshinsky, Colvin and Hespe JJ) Read More »

Catchwords: NATIVE TITLE – costs – where the Full Court determined separate questions in favour of the applicant and certain respondents (the Rirratjingu parties) – where the applicant and the Rirratjingu parties sought an order that the first respondent (the Commonwealth) pay their costs of and in relation to the hearing of the separate questions …

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia (No 2) [2023] FCAFC 113 (20 July 2023) (Mortimer CJ; Moshinsky and Banks-Smith JJ) Read More »

Catchwords: COSTS – application for each party to bear its own costs on appeal and at trial – where Appellant successful on appeal in relation to non-revocation decision but not initial cancellation decision

Catchwords: CORPORATIONS – deed of company arrangement – application to terminate deed of company arrangement pursuant to s 445D(1) of the Corporations Act 2001 (Cth) – where primary judge not satisfied discretion to terminate deed of company arrangement (DOCA) enlivened – whether House v R error by primary judge – whether discretion to terminate DOCA …

Sino Group International Limited v Toddler Kindy Gymbaroo Pty Ltd [2023] FCAFC 110 (14 July 2023) (Farrell, Cheeseman and Feutrill JJ) Read More »

Catchwords: HIGH COURT AND FEDERAL COURT – Jurisdiction – cross-vesting – bankruptcy – where applicant seeks extension of time to appeal from judgment of Supreme Court of New South Wales – where proceeding involves matter arising under Bankruptcy Act 1966 (Cth) and Supreme Court exercising jurisdiction under s 39(2) of Judiciary Act 1903 (Cth) – …

HBSY Pty Ltd v Lewis [2023] FCAFC 109 (14 July 2023) (Markovic, Downes and Kennett JJ) Read More »

Catchwords: BANKRUPTCY – appeal from primary judge decision dismissing an application for the deceased’s estate to be administered in bankruptcy pursuant to s 244 of the Bankruptcy Act 1966 (Cth) – whether primary judge erred in concluding the appellant was not a creditor of the deceased estate – whether primary judge erred in failing to …

Mahommed v Cox as Administrator of the Deceased Estate of Dixon [2023] FCAFC 107 (14 July 2023) (Markovic, Goodman and McElwaine JJ) Read More »

Catchwords: MIGRATION – challenge to Minister’s decision under s 501A(2) of the Migration Act, to refuse to grant a protection visa to the appellant on the ground that it was not in the national interest – where Minister did not consider consequence of potential breach of Australia’s international human rights obligations for Australia’s international reputation …

BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 (14 July 2023) (Perry, Bromwich and Kennett JJ) Read More »

Catchwords: HUMAN RIGHTS – discrimination – special case stated – where applicant an Aboriginal man not yet of the age to qualify for the age pension if Social Security Act 1991 (Cth) is applied according to its terms – where Indigenous men have shorter life expectancy than non-Indigenous men – whether applicant or represented persons …

Fisher v Commonwealth of Australia [2023] FCAFC 106 (12 July 2023) (Mortimer CJ; Katzmann, Charlesworth, Abraham and Kennett JJ) Read More »

Catchwords: TAXATION – appeal from decision of primary judge dismissing appeal from decision of Administrative Appeals Tribunal – where taxpayer is retired partner of a law firm – whether appellant was entitled to receive capital proceeds from disposal of interest in goodwill of partnership – whether appellant made a capital gain

Catchwords: MIGRATION – appeal – primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal – Tribunal affirmed refusal of protection visa application pursuant to s 36(1C)(b) of the Migration Act 1958 (Cth) – appellant convicted of domestic violence and other offences – meaning of ‘a danger to the Australian community’ – …

SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 (07 July 2023) (Rares, Jackson and Snaden JJ) Read More »

Catchwords: CONSUMER LAW – appeal from award of compensation under s 236(1) of Australian Consumer Law (ACL) in Competition and Consumer Act 2010 (Cth) Sch 2 – where primary judge in separate hearing made declarations that conduct conveyed a misrepresentation and contravened ss 18 and 29(1)(e) and (g) of the ACL – where no appeal …

Blu Logistics SA Pty Ltd v Flogineering Pty Ltd [2023] FCAFC 103 (04 July 2023) (Rares, Collier and Logan JJ) Read More »

Catchwords: COSTS – application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) (FW Act) – no reasonable prospects of success on the appeal – appeal instituted without reasonable cause (s 570(2)(a) of the FW Act) – maintenance of the appeal was an unreasonable act of the appeal that caused the …

Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102 (30 June 2023) (Rangiah, Goodman and McElwaine JJ) Read More »

Catchwords: ADMINISTRATIVE LAW – appeal from primary judge decision dismissing an appeal from an Administrative Appeals Tribunal decision affirming a decision of the Tax Practitioners Board to terminate the appellant’s tax agent registration– where Board found appellant is not a “fit and proper” person – where appellant claims Tribunal gave inadequate reasons – s 43 …

Beckett v Tax Practitioners Board [2023] FCAFC 100 (28 June 2023) (Wheelahan, McElwaine and Jackman JJ) Read More »

Catchwords: PRACTICE AND PROCEDURE – Appeal from interlocutory orders to strike out parts of the appellant’s amended statement of claim – where summary judgment was given in favour of the respondent in respect of the causes of action arising from those paragraphs – whether the primary judge erred in striking out the impugned paragraphs – …

BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101 (29 June 2023) (Rangiah, Bromwich and Cheeseman JJ) Read More »

Catchwords: BANKRUPTCY AND INSOLVENCY – where trustee of bankrupt estate made income contribution assessment – where bankrupt requested review of trustee’s decision to make income contribution assessment under s 139ZA of the Bankruptcy Act 1966 (Cth) – where Inspector-General refused request for review – where bankrupt applied for review to the Administrative Appeals Tribunal under …

Inspector-General in Bankruptcy v Rutherfurd (Bankrupt) [2023] FCAFC 99 (28 June 2023) (Rares, Rofe and Downes JJ) Read More »

Catchwords: MIGRATION – where the appellant claimed there was ‘another reason’ under s 501CA(4)(b)(ii) of Migration Act 1958 (Cth) to revoke the mandatory cancellation of his visa and the Administrative Appeals Tribunal affirmed the decision of the Minister’s delegate not to revoke that decision – whether the primary judge erred in dismissing appellant’s application for …

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98 (26 June 2023) (Katzmann, Jackson and McEvoy JJ) Read More »

Catchwords: PATENTS – where listing of generic drug on Pharmaceutical Benefits Scheme (‘PBS’) reduces listing price and Commonwealth subsidy of non-generic form of drug – where Respondent held patent for clopidogrel – where interlocutory injunction obtained restraining generic supplier from entering market with generic clopidogrel – where generic supplier undertook not to seek PBS listing …

Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2023] FCAFC 97 (26 June 2023) (Besanko, Perram and Yates JJ) Read More »

Catchwords: INDUSTRIAL LAW – judicial review of decision of a full bench of the Fair Work Commission (“FWC”) –application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (“FW Act”) – where employee had been charged and convicted of a criminal offence – where conduct was committed out of …

Bobrenitsky v Sydney Trains [2023] FCAFC 96 (23 June 2023) (Collier, Snaden and Goodman JJ) Read More »

Catchwords: INDUSTRIAL LAW – entitlement to redundancy pay under s 119(1)(a) of Fair Work Act 2009 (Cth) – where employer provided employees to work at employer’s clients’ sites under contracts to provide labour services to client for renewable term – where employment contracts referred to employer’s contract with client without mentioning duration – where many …

United Workers Union v Compass Group Healthcare Hospitality Services Pty Ltd [2023] FCAFC 92 (16 June 2023) (Rares, O’Sullivan and Feutrill JJ) Read More »

Catchwords: MIGRATION – where the visa applicant, a citizen of Fiji, held a permanent residency visa as a dependent of his father who held a business visa – where the visa applicant, now an adult, left Australia on a short visit to Fiji – where the Minister’s delegate refused the visa applicant a return visa …

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 (16 June 2023) (Logan, Sarah C Derrington and Anderson JJ) Read More »

Catchwords: COSTS – application for indemnity costs under r 25.14(3) of the Federal Court Rules 2011 (Cth) – whether appellant entitled to indemnity costs following rejected offer of compromise in trial proceeding – whether refusal of offer was unreasonable – whether an order inconsistent with r 25.14(3) should be made under r 1.35 – discretion …

JMC Pty Ltd v Commissioner of Taxation (Costs) [2023] FCAFC 95 (16 June 2023) (Bromwich, Thawley and Hespe JJ) Read More »

Catchwords: TRUSTS AND TRUSTEES – corporate trustee in liquidation – where liquidator assigned company’s causes of action against appellants to respondents – whether assigning right, title and interest in causes of action to respondents is limited to the company’s right of indemnity against trust property and concomitant equitable lien – whether beneficiaries’ interests in claims …

Meletsis v Yeo in his capacity as trustee of the bankrupt estate of Karas [2023] FCAFC 93 (16 June 2023) (Wigney, Anderson and Abraham JJ) Read More »

Catchwords: MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia – where trial judge found reg 2.55(3)(c) of the Migration Regulations 1994 (Cth) to be invalid – whether reg 2.55(3)(c) inconsistent with s 494A of the Migration Act 1958 (Cth) – whether the word ‘may’ in s 494A(1) confers a discretion …

Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91 (13 June 2023) (Perram, Rofe and Feutrill JJ) Read More »

Catchwords: TAXATION – where primary judge held that s 100A of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) applied to deny beneficiary’s present entitlement – whether primary judge erred in construing s 100A(8) of the ITAA 1936 – where primary judge found in the alternative that s 207-150 of the Income Tax Assessment …

B&F Investments Pty Ltd as trustee for the Illuka Park Trust v Commissioner of Taxation [2023] FCAFC 89 (09 June 2023) (Moshinsky, Colvin and Hespe JJ) Read More »

Catchwords: MIGRATION – appeal from orders of Federal Circuit and Family Court of Australia (Division 2) dismissing review applications from decision of the Immigration Assessment Authority – where Authority affirmed decision of the delegate of the Minister to refuse protection visas – assessment of new information pursuant to s 473DD of the Migration Act 1958 …

AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (09 June 2023) (Banks-Smith, Jackson and Feutrill JJ) Read More »

Catchwords: COSTS – question of costs reserved after appeal proceedings – where costs of proceedings before the Federal Circuit and Family Court of Australia (Division 2) are to be determined due to a costs order being set aside for clarity reasons – whether costs below should be to be paid out of the estate of …

Kimber v Clark in his capacity as trustee of the property of Kimber (No 2) [2023] FCAFC 88 (07 June 2023) (Bromwich, Cheeseman and McEvoy JJ) Read More »

Catchwords: BANKRUPTCY AND INSOLVENCY – where applicant a discharged bankrupt – where applicant sought leave to appeal and extension of time to appeal from decision of Supreme Court of New South Wales – where applicant included claim for damages for personal injuries – where primary judge held personal injury claims were not severable from the …

Dimitrovski v Boland [2023] FCAFC 86 (31 May 2023) (Markovic, Downes and Kennett JJ) Read More »

Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing judicial review application concerning two decisions of the Minister – where first Minister cancelled Appellant’s visa under s 501(3) of the Migration Act 1958 (Cth) (‘Cancellation Decision’) – whether Minister could rationally conclude that cancellation of the Appellant’s visa was in national interest …

CCU21 v Minister for Home Affairs [2023] FCAFC 87 (31 May 2023) (Perram, Halley and Goodman JJ) Read More »

Catchwords: MIGRATION – appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) – where Commonwealth policy restricts certain food being brought into immigration detention centres by visitors – whether s 273(1) of the Migration Act 1958 (Cth) authorises contracted third party to exclude visitors in accordance with policy – power …

Minister for Immigration, Citizenship and Multicultural Affairs v SZRWS [2023] FCAFC 83 (30 May 2023) (Perram, Perry and Thawley JJ) Read More »

Catchwords: MIGRATION – appeal from decision of single judge of the Federal Court of Australia – where primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal – where delegate of the Minister refused protection visa application pursuant to s 36(1C)(b) of the Migration Act 1958 (Cth) – where appellant convicted of …

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (30 May 2023) (Rares, Thomas and Snaden JJ) Read More »