Browse Federal Court Judgments

Published in the last week

In order of publication date with most recent additions at the top.


Practice and Procedure ; Corporations Law
Aussie Broadband Limited v Superloop Limited [2024] FCA 312
PRACTICE AND PROCEDURE - application for interlocutory injunction - whether applicant had established prima facie case that respondent had acted for a purpose foreign to the powers contained in its constitution by issuing a notice requiring the applicant to dispose of certain shares in the respondent - whether applicant had established prima facie case that respondent's conduct of the affairs of the company was oppressive for the same reason - whether the balance of convenience favoured an injunction - whether damages an adequate remedy - where it was common ground that the applicant's acquisition of shares was in breach of respondent's constitution and applicable foreign law - application for injunctive relief dismissed
O'CALLAGHAN J - 28 March 2024


Bankruptcy
StockCo Agricapital Pty Limited, in the matter of Webb (Bankrupt) v Webb [2024] FCA 302
BANKRUPTCY -- application by secured creditor for an order under s 33(1)(b) of the Bankruptcy Act 1966 (Cth) (the Act) allowing an amendment of a Creditor's Petition -- where the secured creditor did not set out in the Creditor's Petition particulars of its security as required by s 44 of the Act -- whether leave should be given to amend the Creditor's Petition -- where error the result of inadvertence -- where there is no evidence of prejudice to creditors -- where there has been no unnecessary delay by the secured creditor since discovering the error -- leave granted
BESANKO J - 28 March 2024


Corporations Law
H& B Professional Tiling Pty Limited (In Liq) v Haidari, in the matter of H& B Professional Tiling Pty Limited [2024] FCA 207
CORPORATIONS -- application pursuant to s 1323(5) of the Corporations Act 2001 (Cth) (the Act) seeking that an existing order be varied to permit the payment of $173,650.95 to the first defendant -- where existing orders made under s 1323(3) of the Act prevent any or all money being paid to the first defendant from any bank account maintained by or on behalf of the first defendant -- where first defendant seeks payment of monies to pay what he claims to be ordinary business expenses and ordinary living expenses -- consideration of the relevance of whether there is a prima facie case -- consideration of the relevance of the absence of an undertaking as to damages -- consideration of the relevance of the risk of dissipation of assets -- where apparent unsatisfactory nature of first defendant's evidence -- where the first defendant claims the existing orders have a substantial effect on new business -- where there is no evidence as to the performance and resources of the new business -- order varied but not to the extent sought by the first defendant
BESANKO J - 6 March 2024


Migration
BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301
MIGRATION - application for issue of writs of certiorari and mandamus to Administrative Appeals Tribunal (Tribunal) - where Tribunal affirmed decision not to revoke mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) of applicant's Refugee (Class XB) (subclass 200) visa - whether Tribunal failed to comply with ministerial direction by failing to consider a representation - whether Tribunal made a finding unsupported by evidence - whether errors alleged were material - application dismissed
DOWNES J - 28 March 2024


Practice and Procedure ; Corporations Law
LK Law Pty Ltd v Karas (Notice to Produce) [2024] FCA 306
PRACTICE AND PROCEDURE -- application for the order that the fourth respondent be excused from complying with a Notice to Produce -- whether the Notice to Produce is oppressive -- whether the documents sought are relevant -- whether the fourth respondent complied with orders made on 1 November 2023 -- application refused
O'SULLIVAN J - 18 March 2024


Insurance
Resolution Life Australasia Limited v Mitchell [2024] FCA 310
INSURANCE - appeal from determination of the Australian Financial Complaints Authority (AFCA) - whether AFCA erred in law in failing to provide the applicant procedural fairness by failing to identify and give the applicant notice of certain issues which turned out to be material to its determination and thereby failing to give the applicant an opportunity to adduce evidence or make submissions concerning those issues - whether AFCA erred in law by applying s 13 of the Insurance Contracts Act 1984 (Cth) in circumstances where the respondent was not a party to the insurance policy - whether AFCA erred in law by misconstruing terms of the insurance policy or making a decision inconsistent with the terms of the policy - appeal allowed
WIGNEY J - 28 March 2024


Bankruptcy
Meagher and Cronan (Trustee), in the matter of Laguzza (Bankrupt) v Laguzza [2024] FCA 314
BANKRUPTCY AND INSOLVENCY - where the trustees of a bankrupt estate make an application for an order under s 146 of the Bankruptcy Act 1966 (Cth) (the Act) to proceed with the distribution of dividends - where the bankrupt has not filed a statement of affairs but appears to be solvent - where no appearance for the bankrupt - application granted MENTAL HEALTH - where the bankrupt, on the evidence, appears to be highly distressed - where no express provision for intergovernmental welfare referrals in the Act - whether Court should nonetheless exercise its power to facilitate welfare support of bankrupt - orders accordingly
LOGAN J - 26 MARCH 2024


Administrative Law
Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295
ADMINISTRATIVE LAW -- social security - application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - where the applicant was in receipt of jobseeker payments - where the applicant claimed that he had a serious heart condition - where the applicant was advised by specialists in Australia not to undergo an angioplasty - where the applicant sought treatment overseas - where the applicant wrote a letter to Services Australia before departing, purporting to make claims for pensions under ss 94, 772, and 773 of the Social Security Act 1991 (Cth) - where the applicant sought an extension of a portability period under s 1218D of the Social Security Act - where the applicant's jobseeker payment was suspended upon his departure from Australia - where the applicant's other claims were not expressly dealt with by the respondent - where Services Australia sent a letter on 19 September 2023 to the applicant dealing with certain of these matters after the commencement of this proceeding - whether the 19 September 2023 letter evinces any reviewable error on the part of the Secretary - the applicant did not make a valid claim under s 94, s 772, or s 773 - the applicant disclaimed any challenge to the suspension of his jobseeker payments - no error established - even if an error were established, relief would be refused on the ground that it would be futile - application dismissed.
WHEELAHAN J - 28 March 2024


Industrial Law
General Manager of the Fair Work Commission v Smyth [2024] FCA 304
INDUSTRIAL LAW - where the applicant applies for declarations of contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) and civil penalties against the respondent, in his capacity as President of the Queensland District Branch of the Construction, Forestry, Maritime, Mining & Energy Union's (the Union) Mining & Energy Division - where the respondent was issued a credit card by the Union - where the Union had a policy and relevant expenditure rules that regulated the use of the credit card - where the respondent had a small, no-interest loan facility with the Union - where any outstanding credit card debits were cleared each month via a banking procedure and were subsequently debited to the respondent's loan facility - where the respondent allegedly did not use the credit card in accordance with the policy over a two year period - whether this credit card usage contravened ss 285, 286 and 287 of the FWRO Act INDUSTRIAL LAW - where, prima facie, some contraventions of ss 285, 286 and 287 of the FWRO Act established on the evidence - where s 320 of the FWRO Act deems that, after a period of four years, acts are taken to have been done in compliance with the rules of an registered industrial organisation - where the applicant made no application under section 321 of the FWRO Act - whether s 320 of the FWRO Act has the effect of retrospectively adjudging that acts done in contravention of the rules are not, in fact, contraventions - proceedings dismissed
LOGAN J - 28 March 2024


Corporations Law
Probiotec Limited, in the matter of Probiotec Limited [2024] FCA 298
CORPORATIONS - scheme of arrangement - first court hearing - application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement by acquisition of shares - orders made
BUTTON J - 26 March 2024


Representative Proceedings
Ewok Pty Ltd as trustee for the E & E Magee Superannuation Fund v Wellard Limited [2024] FCA 296
REPRESENTATIVE PROCEEDINGS - application for approval of settlement pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) - where proceeding commenced as a "closed class" representative proceeding - where all group members entered into funding agreements with the litigation funder - whether proposed settlement is fair and reasonable - consideration of proposed deductions from settlement sum - whether suppression orders are necessary to prevent prejudice to the proper administration of justice - limited suppression orders made - settlement approved
BUTTON J - 28 March 2024


Consumer Law
Australian Securities and Investments Commission v Vanguard Investments Australia Ltd [2024] FCA 308
CONSUMER LAW - alleged contraventions of ss 12DB and 12DF of the Australian Securities and Investments Commission Act 2001 (Cth) - investment fund titled and described as ethically conscious - where representations made by the responsible entity of the fund that securities held by the fund had been screened against environmental, social and governance criteria, but where the screening was limited to a subset of the securities held by the fund - where responsible entity admitted most allegations but disputed an allegation concerning the representations conveyed by the Product Disclosure Statements issued by the responsible entity and on the website operated by the responsible entity - whether representations conveyed that all securities held in the fund, or only securities issued by companies, were subject to research and screening against applicable environmental, social and governance criteria - declaratory relief granted
O'BRYAN J - 28 March 2024


Costs ; Administrative Law
Jenkins Sh v Australia Council for the Arts [2024] FCA 309
COSTS - whether applicant's costs of three interlocutory applications should be determined on a lump sum basis where proceeding has otherwise settled - where quantification of interlocutory costs is contested - where respondent opposes lump sum costs award and seeks taxation of applicant's costs - whether lump sum costs process more efficient in the circumstances than taxation - whether lump sum costs process would cause any unfairness or injustice between the parties - where practicable and appropriate to order that the applicant's costs of three interlocutory applications be determined on a lump sum basis - where referral made to a Judicial Registrar for lump sum assessment of costs
HORAN J - 27 March 2024


Bankruptcy
Bester, in the matter of Mirror Trading (Pty) Ltd (in liquidation) [2024] FCA 305
BANKRUPTCY AND INSOLVENCY - application for "shelf order" pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) in the context of a Ponzi-type scheme - company placed into liquidation by High Court of South Africa - application granted - extension of suppression order pursuant to ss 37AE, 37AF, 37AG, 37AH of the Federal Court of Australia Act 1976 (Cth).
MCEVOY J - 27 March 2024


Migration
YQLH v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 293
MIGRATION - mandatory cancellation - where the applicant, a stateless Palestinian, seeks judicial review of a decision of the Administrative Appeals Tribunal not to revoke the cancellation of the applicant's visa - whether the Tribunal failed to consider the relevant country report - whether the Tribunal failed to consider the legal consequences of not revoking the cancellation of the applicant's visa being, at that time, the likelihood of indefinite detention, or the insecurity arising from being stateless - whether there was error in considering the possibility of indefinite detention in view of the subsequent decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 - whether a non-refoulement claim was adequately raised before the Tribunal - application dismissed
STEWART J - 27 March 2024


Consumer Law
Tang v Yu [2024] FCA 297
CONSUMER LAW - alleged misleading or deceptive conduct in relation to financial services contrary to ss 12DA and 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) - whether representations were misleading - where representations were knowingly false - whether misleading representations caused loss - where misrepresentations objectively likely to induce investment - relevance of present value of investment - whether investment had no real value at the time of investment
STEWART J - 27 March 2024


Migration
ASM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 300
MIGRATION - appeal from the Federal Circuit Court - judicial review of a decision of the Immigration Assessment Authority - unparticularised ground of appeal - appeal dismissed
JACKSON J - 27 March 2024


Practice and Procedure ; Corporations Law
Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCA 303
PRACTICE AND PROCEDURE - interlocutory application for summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) - whether pleadings disclose a reasonable cause of action - allegation that ASIC did not have "reason to suspect" that the plaintiff "may have...committed" a contravention of the corporations legislation pursuant to s 13 of the Australian Securities and Investments Commission Act 2001 (Cth) because it did not hold the separate and distinct state of mind in s 16 of the Act - whether necessary to decide application to set aside notice to produce - application for summary judgment allowed.
ROFE J - 27 March 2024


Costs ; Intellectual Property
McD Asia Pacific LLC v Hungry Jack's Pty Ltd (No 2) [2024] FCA 299
COSTS - discretion as to costs - consideration and determination of percentages - lump sum costs orders made pursuant to r 40.02(b) of the Federal Court Rule 2011 (Cth) - if not agreed, amounts to be determined by a Registrar of the Court
BURLEY J - 27 March 2024


Migration
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Tao [2024] FCA 292
MIGRATION - Minister application for civil penalty orders - it is agreed that first respondent contravened s 245AS(1) Migration Act 1958 (Cth) - it is agreed that second and third respondents separately contravened s 245AR(1) of the Act by accepting the money from the first respondent - penalty and declarations jointly sought - penalty imposed and declarations made
ANDERSON J - 26 March 2024


Consumer Law
Australian Energy Regulator v Pelican Point Power Ltd (No 3) [2024] FCA 277
CONSUMER LAW -- where held in principal reasons that the Australian Energy Regulator (AER) was successful in establishing that Pelican Point Power Ltd's (PPPL) Short Term PASA inputs submitted after 3 February 2017 at 12.14 pm contravened cl 3.7.3(e)(2) National Electricity Rules (NER) -- where at the outset of the proceedings the Court made an order that liability be heard separately, and in advance of, the determination of what relief should be granted -- where relief sought is declarations and civil penalties -- where the AER seeks declaratory orders under s 44AAG(1) of the Competition and Consumer Act 2010 (Cth) to the effect that PPPL is in breach of a State energy law as defined in s 4 of the CCA -- where dispute between parties as to the form of declarations with respect to contraventions of cl 3.7.3(e)(2) and cl 3.13.2(h) -- whether declarations within the scope of the case advanced at the trial as to liability -- where dispute between parties as to the number of contraventions of cl 3.7.3(e)(2) -- declarations made CONSUMER LAW -- where the AER seeks the imposition of civil penalties on PPPL -- consideration of relevant matters pursuant to s 64 of the National Electricity Law and Trade Practices Commission v CSR Limited [1990] FCA 521; (1991) 13 ATPR 41-076 -- consideration of the nature and circumstances of the contravening conduct -- whether the contraventions arose out of the conduct of senior management or at a lower level -- consideration of the nature and extent of any loss or damage suffered as a result of the contraventions -- consideration of authorities involving contraventions of the NER -- whether PPPL had in place, and was complying with , a compliance program -- consideration of the difficulty in detecting the contraventions --whether PPPL has engaged in any similar contravening conduct -- consideration of the size and financial position of PPPL and the ENGIE Group -- whether there has been co-operation and timely disclosure by PPPL -- where one civil penalty should be imposed -- where civil penalty of $900,000 imposed
BESANKO J - 27 March 2024


Corporations Law
Mansoor, in the matter of Tvesa Investments Pty Ltd (in liq) [2024] FCA 290
CORPORATIONS - application under s 90-15 of the Insolvency Practice Schedule (Corporations) being Sch 2 to the Corporations Act 2001 (Cth) - liquidators seeking to transfer funds between two companies in liquidation - where liquidators are the liquidators of both the transferor and the intended transferee - meaning of "void" in s 437D of the Act - where "void" means void ab initio - application granted
MARKOVIC J - 8 February 2024


Bankruptcy
Soong v Gleeson (Trustee), in the matter of Soong [2024] FCA 289
BANKRUPTCY - whether notice given by a trustee in bankruptcy purportedly pursuant to s 129AA(4) of the Bankruptcy Act 1966 (Cth) is valid - whether the bankrupt is discharged from bankruptcy pursuant to s 149 of the Bankruptcy Act on the three year anniversary of filing his or her statement of affairs or on the first instant of the following day - where the bankrupt is discharged on the first instant of the following day - where notice issued by trustee is valid
MARKOVIC J - 27 March 2024


Practice and Procedure ; Corporations Law
Bolin Technology Co Ltd v BirdDog Technology Ltd [2024] FCA 286
PRACTICE AND PROCEDURE - where respondent in Federal Court proceeding has filed proceedings in the United States (US Proceeding) - where respondent seeks a permanent or temporary stay of Federal Court proceeding on the basis that this Court is a clearly inappropriate forum - where connecting factors and legitimate personal or juridical advantages to proceeding commenced in Australia - application dismissed PRACTICE AND PROCEDURE - where "anti-anti-suit injunction" sought by applicant in Federal Court proceeding restraining anti-suit application in US Proceeding - where there is a real possibility that applicant may not be able to bring its claims under the Australian Consumer Law in the US Proceeding - application granted PRACTICE AND PROCEDURE - where broader anti-suit injunction sought by applicant restraining the respondents from continuing US Proceeding - where injunction not necessary for protection of Federal Court proceeding - where US Proceeding not vexatious or oppressive - application dismissed
ANDERSON J - 26 March 2024


Migration
Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 294
MIGRATION - judicial review of decision of Administrative Appeals Tribunal affirming decision not to revoke cancellation of visa pursuant to Migration Act 1958 (Cth) s 501CA(4) - where alleged that tribunal did not respond to factual contention - where tribunal observed that statutory task under s 501CA(4) involves an exercise of discretion - application dismissed
JACKMAN J - 26 March 2024


Patents ; Costs ; Practice and Procedure
Boehringer Ingelheim Animal Health USA Inc v Zoetis Services LLC (No 2) [2024] FCA 291
PATENTS - three patent applications on appeal from a decision of a delegate of the Commissioner of Patents - validity of dependent claims after findings in Boehringer Ingelheim Animal Health USA Inc v Zoetis Services LLC [2023] FCA 1119 that certain independent claims were invalid - lack of inventive step - lack of disclosure and support - whether best method disclosed - all claims of each of the patent applications invalid. COSTS -
ROFE J - 26 March 2024


Practice and Procedure ; Administrative Law
Commonwealth of Australia v De Pyle [2024] FCAFC 43
PRACTICE AND PROCEDURE - where primary judge refused interlocutory application by the Commonwealth for certain suppression orders - where evidence adduced from responsible officer that suppression orders necessary to prevent prejudice to national security and to protect the safety of a person - where such evidence not contradicted - where the Commonwealth and the intervenor broadcaster agreed that to the extent that certain information was not in the public domain suppression orders should be made - appeal allowed
O'CALLAGHAN, RAPER AND BUTTON JJ - 26 March 2024


Elections ; Evidence
Electoral Commissioner v McQuestin [2024] FCA 287
ELECTIONS - where respondent admitted contraventions of s 321D(5) of Commonwealth Electoral Act 1918 (Cth) by failing to ensure newspaper advertisements notified particulars in compliance with s 11(3) of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth) - consideration of the appropriate form of declarations - determination of civil penalty - where number of contraventions of s 321D(5) in dispute - whether contraventions occurred each time contravening advertisement authorised for publication, or each time published
O'BRYAN J - 26 March 2024


Corporations Law
Hodgson (Liquidator) v Bryce, in the matter of Advanced Traffic Management (WA) Pty Ltd (in liq) [2024] FCA 260
CORPORATIONS - application for issue of warrant for search and seizure pursuant to s 530C of the Corporations Act 2001 (Cth) - ex parte - application allowed
BANKS-SMITH J - 29 February 2024


Practice and Procedure ; Administrative Law
Joy v UGL Operations and Maintenance Pty Limited (No 3) [2024] FCA 279
PRACTICE AND PROCEDURE - interlocutory applications for recusal, particular discovery and to give testimony and to appear and make submissions via video link
FEUTRILL J - 25 March 2024


Bankruptcy
Nugawela v Dudley (Trustee) [2024] FCA 285
BANKRUPTCY AND INSOLVENCY - application under r 39.05(a) to set aside interlocutory order made in absence of applicant - no good reason for being absent when order was made established - no prima facie argument of sufficient merit - application to set aside interlocutory order dismissed
JACKSON J - 22 March 2024


Native Title
Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288
NATIVE TITLE - practice and procedure - application to adduce additional expert evidence and to thereby re-open the case after judgment is reserved - whether it is in the interests of justice to grant leave for the additional expert evidence to be filed - application refused
MURPHY J - 25 March 2024


Contempt of Court
Guoao Holding Group Co Ltd v Xue (Contempt) [2024] FCA 278
CONTEMPT OF COURT - where the applicant seeks orders that the first respondent be found guilty of criminal or civil contempt by acting in breach of freezing orders - where the applicable standard of proof is the criminal standard of proof of beyond reasonable doubt - whether the alleged contemnor had knowledge of the freezing orders - whether wilful blindness amounts to knowledge -whether the basis for contumacy has been made out - whether transactions were within permitted exceptions to freezing orders
STEWART J - 25 March 2024


Practice and Procedure ; Corporations Law
Rathner (Liquidator), in the matter of PE Capital Nominees Pty Ltd (In Liq) v Runner Investment Limited (No 2) [2024] FCA 276
PRACTICE AND PROCEDURE - application by second defendant to uphold subpoenas issued to third parties and notice to produce issued to the first defendant - review of decision made by a Registrar to set aside certain subpoenas and parts of notice to produce - application granted in part.
MCEVOY J - 22 March 2024


Costs ; Native Title
Lockyer for and on behalf of the Robe River Kuruma People v Citic Pacific Mining Management Pty Ltd (No 3) [2024] FCA 271
COSTS - indemnity costs - offers to compromise - where offer to compromise made pursuant to direction of the Court - where offer to compromise rejected - whether offer involved genuine compromise - whether rejection of offer was imprudent or unreasonable - whether costs should be awarded on indemnity basis - held rejection of offer not unreasonable - costs to be determined on party-party basis
COLVIN J - 22 March 2024


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