Appendix 7: Decisions of Interest

Federal Court of Australia Annual Report 2017-2018

Decisions of interest

Administrative and Constitutional Law and Human Rights NPA

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

(22 June 2018, Rares, Flick and Rangiah JJ)

A blanket policy of prohibiting mobile phones and SIM cards in detention centres and of removing such items from all detainees for the duration of their detention was found to be invalid in this case.

Rares J found that a positive law was required to authorise such a policy. The policy was not authorised by the power to 'maintain' detention centres, because this power was addressed to upkeep of facilities. It was also not authorised by the search power because this power could not be relied upon to confiscate mobile phones that were not concealed or secreted. The power to 'detain' authorised 'reasonably necessary' action and use of force by authorised officers, however, it was not 'reasonably necessary' to deprive all detainees of their mobile phones, particularly where unmonitored landline telephones and computer internet access would still be provided to effect the same or very similar communication opportunities with persons outside a detention centre.

Rangiah J found that the policy was a 'blanket' one that required authorised officers to confiscate and retain mobile phones and SIM cards, regardless of particular circumstances. Accordingly, the policy was invalid for the additional reason that it was inconsistent with the discretionary powers conferred upon authorised officers to personally and independently make discretionary judgements based upon the particular circumstances that they face.

Flick J agreed with both Rares and Rangiah JJ, in finding that there was not a sufficiently unambiguous source of legislative power to support the policy and it was inconsistent with the discretionary powers otherwise vested in an 'authorised officer'. Even if some statutory source of power could be found, any exercise of such a power would necessarily have to be proportionate to the power conferred. An assessment of proportionality would require taking into account a variety of considerations peculiar to individual detention centres and personal to individual detainees.

Administrative and Constitutional Law and Human Rights NPA

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

(15 January 2018, Kenny, Kerr and Perry JJ)

The appellant ('DAO16') appealed from a decision of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of the Administrative Appeals Tribunal's decision to affirm a decision of the delegate of the Minister for Immigration and Border Protection not to grant DAO16 a protection visa.

DAO16, a citizen of India, claimed he was gay and feared harm in India by reason of his sexuality. This claim was rejected by the Tribunal. It found that DAO16 had falsely claimed to be in a genuine homosexual relationship with a Mr R and that this finding had so 'poisoned the well' that no corroborating evidence could be accepted. Specifically, the Tribunal rejected the evidence of multiple witnesses relied upon by DAO16 as fabricated because most witnesses were associated with Mr R and/or had some connection with protection visa applicants. The Tribunal found that DAO16 was 'prepared to do whatever he considers necessary to assist him to obtain a permanent visa'.

The FCC rejected the contention that the Tribunal had failed to take evidence into account and held that the Tribunal had not engaged in any illogical process of reasoning or made findings unsupported by the evidence.

The Full Court allowed the appeal, holding that the Tribunal's decision demonstrated 'extreme illogicality' and 'lack[ed] an intelligible foundation'. It held that the Tribunal's finding that DAO16's relationship with Mr R was fabricated did not provide a logical or rational basis for rejecting the corroborative evidence of four witnesses in respect of whom there was no evidence of any connection with Mr R or other protection visa applicants. The Full Court held that the Tribunal's reasons did not disclose any attempt to analyse and explain why the evidence of these independent witnesses was found to be fabricated. The Full Court expressed grave concerns as to the reasonableness of the Tribunal's decision in other respects including that many findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. The Full Court also found that the FCC failed to consider fundamental aspects of the appellant's case including the challenge to the Tribunal's treatment of the evidence of the 16 witnesses.

Administrative and Constitutional Law and Human Rights NPA

Hocking v Director-General of National Archives of Australia [2018] FCA 340

(16 March 2018, Griffiths J)

In 1978, a bundle of correspondence between the then Governor-General of Australia, Sir John Kerr, and The Queen (or The Queen's Private Secretary) was placed into the custody of the National Archives of Australia ('the Archives'). The bundle, known as AA1984/609, included letters, telegrams and attachments exchanged between Sir John and The Queen between 1974 and 1977. In accordance with the instrument of deposit, AA1984/609 was to remain sealed until after 8 December 2037, and after this date, was not to be accessed without consultation with the Private Secretary of the day and the Governor-General's Official Secretary of the day.

The applicant, an academic, requested access to the records in AA1984/609 pursuant to the Archives Act 1983 ('the Act'). The request was refused by the Archives, on the basis that the records did not fall within the definition of 'Commonwealth records' as defined in s 3 of the Act. The records did not constitute 'the property of the Commonwealth', nor 'the property of the official establishment of the Governor-General'.

The applicant sought judicial review of the Archives' decision. The primary question before the Court was whether the records in AA1984/609 were Commonwealth records. If they were in fact Commonwealth records, the Act provided for public access 30 years after the records came into existence. If the records were not Commonwealth records, public access was governed by the instrument of deposit. Griffiths J noted that determination of the proceeding depended on the statutory construction of the Act, taking into account its legislative history. Griffiths J concluded that the applicant had not established any reviewable error on the part of the Archives, and that the Archives did not err in finding that the records were properly considered Sir John's personal property.

The primary judge found that private and personal correspondence between Sir John and The Queen has traditionally been regarded as the personal property of the correspondents. Sir John, in providing periodic briefings to The Queen, was not exercising the executive power of the Commonwealth.

In addition, Griffiths J found that the records were not 'the property of the official establishment of the Governor-General'. Although this is not defined in the Act, the Court concluded that the concept referred to persons assisting the Governor-General's performance of official duties, and not necessarily to the position of the Governor-General itself. Griffiths J dismissed the application for judicial review.

An appeal to the Full Court is currently listed for hearing in November 2018.

Admiralty and Maritime NPA

Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132

(16 August 2018, Allsop CJ, Moshinsky and Colvin JJ)

Zetta Jet Pte Ltd and Mr King (a trustee appointed to Zetta Jet under United States insolvency law) alleged that Zetta Jet was the owner in equity of the vessel Dragon Pearl. The Dragon Pearl was arrested in October 2017, and held by the Admiralty Marshal pending determination of the Court proceedings. Those proceedings were dismissed, as was a subsequent appeal.

Following the dismissal of the appeal, the vessel was purchased by Linkage Access Limited ('Linkage') for US$1. Zetta Jet and Mr King brought new proceedings against Linkage to arrest the vessel. Although the application for a warrant was denied, the in rem claim against the Dragon Pearl remained outstanding.

In the course of a third set of proceedings, Zetta Jet and Mr King sought interlocutory injunctions to restrain the removal of the Dragon Pearl from Australian waters, or alienation of title in the vessel pending a trial. In support of the interlocutory injunctions, Mr King claimed that he had applied for recognition as a foreign representative of Zetta Jet under the UNCITRAL Model Law on Cross-Border Insolvency and that he intended to apply for relief under s 588FF of the Corporations Act 2001 in relation to the alleged uncommercial transaction by which the Dragon Pearl was transferred to Linkage.

In reply, Linkage submitted that a res judicata arose in relation to claims in rem by Zetta Jet and Mr King against the vessel by reason of the dismissal of the original proceedings. Linkage proceeded to seek summary dismissal of the second in rem proceeding, which was granted by the primary judge, who accepted the res judicata submissions. An injunction was also refused.

Zetta Jet and Mr King sought leave to appeal. The Full Court found that leave ought to be granted, but concluded that the primary judge did not err in ordering summary dismissal of the in rem proceedings and denying the claim to injunctive relief based upon res judicata principles.

However, the Full Court also found that the primary judge did not separately address the significance for the application for injunctive relief of the foreshadowed claim for relief under s 588FF of the Corporations Act 2001. Accordingly, the Full Court allowed the appeal as to the dismissal of the interlocutory injunction application and remitted the matter to the primary judge to consider whether the uncommercial transaction claim is a sufficient ground on which to order an injunction.

Commercial and Corporations NPA | Commercial Contracts, Banking, Finance and Insurance Sub-Area

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170

(27 October 2017, Allsop CJ, Besanko and O'Callaghan JJ)

Two grandchildren of Mr Langley Hancock commenced proceedings against 15 respondents, including their mother, siblings and various entities in the Hancock Group. It was alleged that following the death of their grandfather, their mother took control of all entities in the Hancock Group and, in breach of her duties as a fiduciary and as a trustee, engineered a situation that gave her children a lesser interest in the family's valuable mining assets than had been agreed.

The Full Court considered an interlocutory application seeking a stay of the Court proceedings and an order referring the parties to arbitration. It was alleged that the applicants had previously given up any right to bring any of the claims made and had in any event agreed that any such claims would be made in confidential arbitral proceedings. The Full Court found that the arbitration contemplated in this case was a 'commercial arbitration'. It was not necessary to demonstrate a pre-existing commercial relationship between the parties. A family or domestic dispute and the arbitration to resolve it could be characterised as a commercial dispute.

The Full Court also found that arbitration clauses should be interpreted liberally where the words permitted that to be done. The correct general approach was that parties did not intend to have their disputes heard in two places. The Full Court construed the words 'any dispute under this deed' to mean the whole dispute or controversy. Construing the word 'dispute' in a way that brought the substantive defence, but not the substantive reply into the purview of the arbitration clause would be contrary to principle because it would provide for dispute resolution in two places.

The Full Court ordered a stay of the whole of the proceedings pending any arbitral reference or until further order, finding that claims against non-parties to the arbitration agreements were also fundamentally adjectival to those involving the parties to the arbitration agreements.

The High Court of Australia granted special leave to appeal and the appeal is currently listed for hearing on 12 October 2018.

Commercial and Corporations NPA | Corporations and Corporate Insolvency Sub-Area

Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40

(21 March 2018, Allsop CJ, Siopis and Farrell JJ)

The Full Court in this case considered a liquidator's application for directions and declarations in relation to a voluntary winding up of a company that had carried on business as the trustee of a trading trust. The questions considered by the Full Court have been the subject of significant academic debate and conflicting decisions over the course of several decades.

The Full Court was unanimous in holding that assets of the trading trust were not assets in the winding up of the trustee company. A liquidator therefore did not have power under the Corporations Act 2001 to sell those assets and required separate permission from the Court to do so. The Full Court was also unanimous in finding that proceeds from the sale of trust assets were not available to pay all creditors of the insolvent corporate trustee and had to be used only to pay trust creditors.

Allsop CJ and Farrell J agreed, for different reasons, that the proceeds of realisation of trust assets should be distributed in accordance with the priority regime in the Corporations Act 2001. Allsop CJ found that the priority regime applied because the proprietary interest of the trustee in the assets otherwise held on trust in support of the right of indemnity by way of exoneration was 'property of the company' for the purposes of the Corporations Act 2001. Farrell J accepted as binding the recent decision of the Victorian Court of Appeal in Re Amerind. Farrell J also observed, and Allsop CJ agreed that, if the distribution was to be in accordance with equitable principle, then there was a sound basis for concluding that Equity would follow the statute by providing for the priority of employees.

Siopis J distinguished Re Amerind and did not agree that 'property of the company' for the purposes of the priority regime included a trustee's right of indemnity by way of exoneration. Siopis J agreed with the majority that it would be open for a court exercising equitable jurisdiction to direct that monies realised from the sale of trust assets should be distributed to trust creditors other than pari passu. In this case, however, Siopis J was not satisfied that directions in those terms should be made as the liquidator had not applied for appointment as a receiver in respect of the sale of trust assets.

Commercial and Corporations NPA | Economic Regulator, Competition and Access Sub-Area

Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751

(24 May 2018, Beach J)

Pecuniary penalty proceedings were brought by the Australian Securities and Investments Commission ('ASIC') against Westpac Banking Corporation ('Westpac') concerning its trading in prime bank bills in the bank bill market between 6 April 2010 and 6 June 2012 with the alleged purpose of influencing the setting of the bank bill swap reference rate ('BBSW'). The BBSW is a key benchmark interest rate in Australian financial markets. Its purpose and function is to provide an independent and transparent reference rate for the pricing and revaluation of Australian dollar derivative instruments, securities and commercial loans.

ASIC claimed that Westpac breached its financial services licensee obligations and had engaged in market manipulation, market rigging, unconscionable conduct, misleading or deceptive conduct and misrepresentation. ASIC contended that during the relevant period, Westpac had developed and pursued a practice of trading prime bank bills with the sole or dominant purpose of influencing the level at which the BBSW was set in a way that was favourable to its BBSW rate set exposure to the disadvantage of counterparties ('Rate Set Trading Practice').

Beach J rejected ASIC's allegation of a Rate Set Trading Practice during the relevant period, but accepted that on four occasions Westpac traders did trade in bank bills with the dominant purpose of influencing the level at which BBSW was set in a way that was favourable to Westpac's BBSW rate set exposure. Beach J was not satisfied that this amounted to market manipulation or market rigging, although Westpac was found to have engaged in unconscionable conduct under the Australian Securities and Investments Commission Act 2001. Beach J found that Westpac's conduct on the four identified occasions was against commercial conscience as informed by the normative standards and their implicit values enshrined in the text, context and purpose of the Australian Securities and Investments Commission Act 2001 specifically and the Corporations Act 2001 generally. Beach J also concluded that by reason of inadequate procedures and training, Westpac contravened its financial services licensee obligations.

Commercial and Corporations NPA | General and Personal Insolvency Sub-Area

Luck v University of Southern Queensland [2018] FCAFC 102

(29 June 2018, Logan, Mortimer and Charlesworth JJ)

A creditor's petition lapses 12 months after its presentation or at the expiration of a period fixed by the bankruptcy court. In this case a petition presented in April 2015 was due to lapse in April 2016 unless validly extended. In March 2016, a registrar of the FCC made a consent order adjourning the further hearing of that petition to May 2016 ('consent order'). It was not brought to the registrar's attention and the registrar was not aware that the petition would lapse prior to this date. In May 2016, the registrar made an order under the 'slip rule' correcting the consent order by extending the life of the creditor's petition ('correcting order'). The Full Court was asked to consider whether the life of the creditor's petition was thus validly extended retrospectively.

The majority of the Full Court agreed that a registrar could rely on the 'slip rule' to make the retrospective correcting order, so the life of the creditor's petition was validly extended. Registrars were expressly given the power to extend the life of a creditor's petition, but not to use the 'slip rule'. Registrars could, however, exercise a power that was 'related to' an expressly delegated power.

Mortimer J found that the exercise of the power under the 'slip rule' in this case 'related to' the expressly delegated power to extend the life of a creditor's petition. The two powers were not 'separate and distinct' because the power under the 'slip rule' was derivative, not free-standing. Mortimer J also found that it was possible to retrospectively extend the life of a creditor's petition under the slip rule because what in law occurred when the slip rule was employed was that the exercise of power was located at the time the omission or failure occurred, here in March 2016. Logan J agreed generally with the reasons for judgment of Mortimer J.

Charlesworth J agreed that the appeal should be dismissed, but on a different legal basis. The reasoning of Charlesworth J differed from the majority in that she found that the registrar could not rely on the slip rule in this case. This was because in March 2016, the registrar had not actually formed an intention to extend the life of the petition and Charlesworth J considered this to be a necessary precondition to the registrar's use of the slip rule.

An application for special leave to appeal is currently pending in the High Court of Australia.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165

(25 October 2017, Greenwood, Nicholas and Burley JJ)

In advance of the 2016 Summer Olympic Games, Telstra commenced a marketing campaign, promoting the availability of live events streamed from the Olympics by Seven Network. The Australian Olympic Committee ('AOC') contended that Telstra's campaign used protected Olympic expressions, including 'Olympic' and 'Olympic Games', in breach of the Olympic Insignia Protection Act 1987 (Cth) ('OIP Act'). The AOC also alleged that the Telstra campaign breached the Australian Consumer Law ('ACL') by conveying a false representation, or by having a tendency to cause people erroneously to assume, that Telstra or its products or services had some form of affiliation or sponsorship like arrangement with the Olympic Games, the Olympic movement, the AOC or another Olympic body.

The primary judge concluded that Telstra's campaign did not evoke a connection with a relevant Olympic body, either for the purpose of the OIP Act claim or the ACL claim. It was not enough for the AOC to prove that the campaign was Olympic themed. The primary judge found that Telstra effectively promoted its sponsorship arrangement with the Seven Network by conveying an impression that its customers could get premium access to Seven Network's coverage of the Olympic Games on their mobile devices.

The Full Court observed that it was not helpful that the grounds of appeal were broadly expressed and amounted to little more than assertions that the primary judge fell into error by not deciding in accordance with the AOC's case. The Full Court emphasised that on appeal, the primary judge's views on the effect of the advertisements and the representations and suggestions they conveyed should be given considerable weight unless those views were shown to be affected by some relevant error of law or fact. The Full Court found it was plainly open to the primary judge to reject the contention that a viewer would consider a disclaimer that Telstra was not an 'official sponsor of the Olympic Games', as an assertion that it was an unofficial sponsor. After reviewing the evidence at trial afresh, the Full Court concluded that no error had been demonstrated by the AOC and dismissed the appeal.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224

(22 December 2017, Dowsett, McKerracher and Moshinsky JJ)

Valve is a United States based company that operates an online game distribution network with more than two million Australian subscriber accounts. It was alleged that Valve made misrepresentations in its refund policies, including by claiming that it had no obligation to offer refunds or to comply with Australian consumer guarantees. Valve claimed that its refund policies were not misleading because it was not bound by Australian consumer guarantees. This was because the relevant supplies were made pursuant to contracts that were governed by United States law. Valve also contended that the representations were not made in Australia and that it did not carry on business in Australia.

The primary judge found that some of the alleged representations were made and were misleading. The primary judge imposed a pecuniary penalty of $3 million and ordered other relief, including corrective advertising and a compliance program. The Full Court dismissed Valve's appeal and also a cross-appeal from the decision of the primary judge.

The Full Court did not accept that Australian consumer guarantee provisions could not cover supplies pursuant to contracts governed by foreign law. The Full Court found it would be inconsistent with the statutory scheme to so limit the scope of operation of Australian consumer guarantees.

The Full Court also found that, in substance, the representations were made in Australia. They were addressed to customers in Australia and this is where they were accessed and read. The representations could be taken to have been made in Australia even if Valve was based in the United States and the representations were also available to be accessed by consumers in other countries.

The Full Court found no error in the primary judge's conclusion that Valve was carrying on business in Australia. Not only did Valve engage in transactions with a large number of Australian consumers, it owned servers in Australia upon which content was 'deposited' when requested by its Australian customers. There was a series or a repetition of acts in Australia that formed part of the conduct of Valve's business.

The Full Court did not consider the penalty of $3 million to be manifestly excessive and found no error in relation to the other relief that had been ordered by the primary judge.

Employment and Industrial Relations NPA

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

(11 October 2017, North, Tracey, Flick, Jagot and Bromberg JJ)

As part of its four yearly review of modern awards as prescribed by s 156 of the Fair Work Act 2009 ('the Act'), the Fair Work Commission ('FWC') made determinations to vary multiple awards by reducing the Sunday and holiday penalty rates and other employee entitlements from 1 July 2017. The FWC considered that the penalty rates, as they then were, did not achieve the modern awards objective set out in s 134(1) of the Act, as they did not provide a fair and relevant minimum safety net.

Two unions, the Shop, Distributive and Allied Employees Association and United Voice ('the applicants'), sought judicial review of the FWC's determinations in this Court, submitting that the FWC lacked power under s 156 of the Act to make a determination to vary the award without having first satisfied itself that there had been a material change in circumstances since the previous review. The Full Court rejected this ground, finding that the FWC's power is not conditional upon it being satisfied that a material change has occurred.

The applicants also argued that the FWC misunderstood the nature of the inquiry required under s 134 of the Act, ultimately misconstruing 'relevant' in the phrase 'fair and relevant minimum safety net' as meaning that the award must be suited to contemporary circumstances, instead of by reference to only the factors at s 134(1)(a)-(h), which the applicants contended were exhaustive. The Full Court considered the phrase 'fair and relevant' to be a composite phrase, and held that while those matters in s 134(1)(a)-(h) inform the evaluation of what is a 'fair and relevant minimum safety net of terms and conditions', the FWC is not confined to consideration of those matters only.

In reaching its decision, the Full Court reiterated that its task is limited to reviewing the FWC's decision-making processes for jurisdictional error, and does not extend to assessing the correctness or the merits of the FWC's conclusions.

Having concluded that the FWC's decision, read as a whole, does not disclose any jurisdictional error, the Full Court ordered that each of the applications be dismissed.

Federal Crime and Related NPA

SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609

(30 April 2018, Bromwich J)

In February 2018, four search warrants were issued for execution at addresses in Melbourne and in the Australian Capital Territory in the course of an Australian Federal Police investigation targeted at SMEC Holdings Pty Ltd ('SMEC'). SMEC and several of its employees or officers brought four proceedings seeking judicial review, challenging the issue of the search warrants, their validity on their face and their execution. Interlocutory applications for discovery were also filed. While the parties were able to reach a consent position in relation to discovery pertaining to the execution of the search warrants, the Commissioner continued to oppose orders for discovery in relation to the material before the officers issuing the search warrants.

The central question was whether the applicants had established a sufficient basis for the Court to exercise its discretion to order the Commissioner to discover the material that was before the issuing officers. Among other assertions, the applicants argued that the issuing officers could not have been satisfied, on the basis of the information before them, that there were reasonable grounds to suspect that items described in the warrant, and located at the premises, would afford evidence of the offences. The applicants also claimed that the warrants were invalid, in circumstances where the applicants asserted they did not commit the offences specified in the warrants.

Bromwich J observed that, under s 3E of the Crimes Act 1914, an application for the issue of a search warrant only has to meet a 'low threshold requirement' and so it is difficult to establish that a search warrant has been invalidly issued, by reason of insufficient material before the issuing officer.

Bromwich J further noted that obtaining and executing a search warrant does not constitute any allegation, at that stage, that offences have been committed. It is clear, on the face of each of the four search warrants, that they were obtained on the grounds of no more than a suspicion by the warrant applicant that offences had occurred. Accordingly, claiming one's innocence is not of significant value. Such a claim cannot establish that the suspicion is unreasonably held, nor can it be a sound basis for inferring a lack of sufficient grounds for the issue of a search warrant.

Orders for discovery in relation to the execution of the search warrants were made by consent. The interlocutory applications for discovery were otherwise dismissed.

Intellectual Property NPA | Copyright Sub-Area

Career Step, LLC v TalentMed Pty Ltd (No 2) [2018] FCA 132

(28 February 2018, Robertson J)

Career Step, a company based in the United States, brought claims against TalentMed, an Australian company, for copyright infringement under the Copyright Act 1968 ('the Act'). Career Step provided an online educational course for those training to be medical transcriptionists. Career Step claimed that TalentMed copied portions of its course, provided under licence, to develop its own materials to offer a competing course to students.

In response, TalentMed and its two directors (together 'the respondents') asserted that Career Step had failed to establish subsistence or ownership of copyright in the work relied upon. The respondents further submitted that TalentMed had not infringed copyright in any alleged work, and neither director was accessorially liable.

Robertson J concluded that TalentMed's first version of its course 'took a substantial part of Career Step's copyright in the work' and that such copyings were not generic, although this was not found in relation to TalentMed's second iteration. It was also accepted that the directors authorised the copying.

Robertson J rejected the respondents' contention that Career Step had failed to evidence the pleaded copyright work, which was found to be the course content, including text containing information, case studies, graphs, diagrams, quizzes and exams, developed by employees and contractors of Career Step operating together. Robertson J accepted Career Step's submission that the course content constituted an original literary work, and more specifically, a work of joint ownership in accordance with the definition in s 10 of the Act. Robertson J was not satisfied that a work consisting of modules could not be a single work. Robertson J found that it was not necessary for each of the writers to contribute to each of the modules before a claim to joint ownership could be established. It was sufficient that the authors, as members of the group constituted for a common purpose, had been identified.

Robertson J also found that ownership lay with Career Step. This was because, by virtue of s 35(6) of the Act, Career Step as employer became the owner of copyright in the work product of the employees, and by s 196 of the Act, became the owner of copyright in the work product of the contractors by virtue of assignments. Declarations reflecting the respondents' infringement were made.

Intellectual Property NPA | Patents and Associated Statutes Sub-Area

Warner-Lambert Company LLC v Apotex Pty Limited (No 2) [2018] FCAFC 26

(23 February 2018, Jagot, Yates and Burley JJ)

Apotex challenged, on grounds of insufficiency and false suggestion, the validity of Pfizer's patent for a new therapeutic use of Lyrica (pregabalin) in pain therapy. The primary judge found the patent was sufficient and that a false suggestion was not material to its grant. The primary judge also found threatened infringement by Apotex.

The Full Court found no error in the primary judge's conclusions in relation to sufficiency. The Full Court accepted that the invention was a broad one directed to a new therapeutic use, not more specific matters such as dosage. The character of the invention was important when considering the description that will be sufficient. The relevant question was whether the specification described the invention fully, not what else was necessary for regulatory approval. There was a difference between whether a person skilled in the art could perform the invention based on the description in the specification and whether a clinician would choose to do so.

The primary judge did not agree that the description of the invention left a person skilled in the art with too much work to do, reasoning that if the steps required to be taken to work the invention were readily apparent and routine, then the test for sufficiency would be satisfied. The Full Court saw no error in this approach, nor in the finding of fact that the work required in the present case was routine for the person skilled in the art.

The Full Court found it was plainly open to the primary judge to conclude that the false suggestion was not a material factor that led to the grant of the patent. The Full Court found that the relevant claims would not lack fair basis even if the reference to testing that included the false suggestion had been omitted.

The Full Court also agreed with the primary judge that there was no reason to read down the definition of 'exploit' to found any territorial limitation. The relevant act of infringement was not the use of the method outside the patent area but the exploitation (by importation and sale) in Australia of a product made using the patented method. Thus a Swiss-style claim could be infringed by a threat to import and supply medicaments made outside of the patent area by a third party.

Intellectual Property NPA | Trade Marks Sub-Area

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93

(22 June 2018, Allsop CJ, Perram and Markovic JJ)

Since 2007, Moroccanoil has produced and distributed 'high-end' hair and skin care products containing argan oil from Morocco. Moroccanoil sought to register this word as a trade mark in relation to hair care products in 2011. In the same year, Aldi became aware that argan oil products were 'on-trend' and decided to produce their own range of argan oil hair care products under the brand 'Protane Naturals'. Aldi opposed the registration of the Moroccanoil trade mark and Moroccanoil claimed that the manner in which Aldi sold its argan oil products constituted misleading or deceptive conduct.

The primary judge found that the packaging of Aldi's products misleadingly conveyed that they were substantially comprised of natural ingredients and that their claimed benefits resulted from argan oil. The primary judge also found that the way in which the word 'Moroccanoil' had been used by Moroccanoil made it capable of distinguishing Moroccanoil's goods. The primary judge found that the trade mark could therefore proceed to registration.

The Full Court unanimously allowed the trade mark appeal, finding that the wordmark 'Moroccanoil' really just meant 'oil from Morocco' and was not inherently adapted to distinguish, nor capable of distinguishing by reason of use, Moroccanoil's products from those of other traders selling argan oil based hair care products.

The Full Court was also unanimous in finding that the word 'Naturals' on the packaging of the Aldi products did not convey to the ordinary reasonable consumer that the products were comprised of substantially natural ingredients. The primary judge fell into error by asking the wrong question, namely whether the ingredients in the products could be described as 'natural'.

In relation to the claimed benefits of the Aldi products, Perram J did not consider the labelling to suggest that the claimed benefits were derived from the presence of argan oil, but found this difference of opinion did not bespeak error for the purposes of appellate review. Allsop CJ and Markovic J both agreed with the primary judge.

Allsop CJ and Perram J also made some important observations about the nature of appellate review. In particular, they criticised a test of 'plainly and obviously wrong' as lacking the necessary nuance and setting the standard of appellate review higher than it should be.

Native Title NPA

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36

(16 March 2018, Reeves, Jagot and White JJ)

These appeals concern competing and entirely overlapping native title claims over the same claim area, known as Lake Torrens. Native title had been found to exist in favour of each of the appellants, the Kokatha People, the Adnyamathanha People and the Barngarla People, over separate areas of land surrounding Lake Torrens. The Full Court by majority held that all three appeals should be dismissed.

All of the native title applicants were unsuccessful before the primary judge. The primary judge found that the claimed rights and interests of the Kokatha People were contemporary in origin. The primary judge also found that neither the Adnyamathanha People nor the Barngarla People were able to establish a continual substantially uninterrupted connection with the claim area, in accordance with the traditional laws and customs held with respect to the area at sovereignty.

Reeves J found that the deficiency in the appeal by the Kokatha People was that their lay evidence did not take the Kokatha People's connection to Lake Torrens anywhere near sovereignty. Reeves J rejected submissions that the primary judge erred in his findings, including in relation to their rights and interests in the claim area, the significant objects shown in an evidence session and ethnographic surveys. Reeves J found that 'nothing has been advanced … to show why his Honour was wrong'.

Reeves J also rejected the appeal by the Adnyamathanha People. Reeves J found that the primary judge did not misapply the test for connection under the Native Title Act 1993, finding that 'occupation' was not mistakenly used in the Western sense. Reeves J did not accept that the primary judge erred by misusing the effect of the previous three consent determinations of the area around Lake Torrens. Reeves J also dismissed the appeal by the Barngarla People, finding that many grounds were confined to challenging findings the primary judge made, which were to a substantial degree based upon the witnesses' credibility.

White J agreed with the reasons given by Reeves J. White J emphasised that the Full Court should 'recognise the advantages of the primary judge arising … from his Honour having seen and heard the evidence given'.

In a dissenting judgment, Jagot J found the appeals should have been allowed. In considering the primary judge's treatment of the prior determinations of native title, Jagot J noted 'the Kokatha determination did not establish … that the Adnyamathanha and the Barngarla Peoples did not have rights and interests under their traditional laws and customs by which they had a connection with the Kokatha determination area pre-sovereignty or at any time thereafter until the date of the determination itself'. Jagot J also accepted that the primary judge erred in consideration of some evidence, so would have allowed the Kokatha appeal.

An application for special leave to appeal is currently pending in the High Court of Australia.

Other Federal Jurisdiction NPA

Rush v Nationwide News Pty Limited (No 2) [2018] FCA 550

(20 August 2018, Wigney J)

This matter concerns defamation claims brought by Mr Rush against Nationwide News Pty Ltd and its journalist, Mr Moran (together 'the respondents'). During the course of proceedings, the respondents filed two interlocutory applications, both of which were opposed by Mr Rush. Wigney J dismissed both applications.

In the first interlocutory application the respondents sought leave to file a further amended defence, which proposed two 'substantive and substantial' amendments to the current defence. The first amendment proposed to reinsert parts of the qualified privilege defence, previously struck out by Wigney J in an earlier judgment. The respondents submitted that the proposed paragraphs were 'directly relevant background context', and material to the mitigation of damages, rather than as particulars of the qualified privilege defence, in accordance with the principles outlined in Burstein's Case. The second amendment also proposed to reinsert paragraphs previously struck out as particulars of the pleaded qualified privilege defence. Wigney J found that the paragraphs that the respondents sought to be reintroduced into their defence did not fall within the principles in Burstein's Case. Rather, the paragraphs comprised little more than hearsay statements about allegations that had been made about Mr Rush, or rumour or innuendo, or facts about this that did not bear at all on Mr Rush's reputation. In relation to the second proposed amendment, Wigney J noted that he had already found, in an earlier judgment, those paragraphs to be irrelevant to their defence of qualified privilege. Finally, Wigney J noted that the respondents had not yet offered a satisfactory reason for their delay in seeking leave to amend.

In the second interlocutory application, the respondents sought leave to file a cross-claim out of time, naming the Sydney Theatre Company ('the STC') as a cross-respondent and alleging that the STC also defamed Mr Rush. Wigney J considered that the proposed cross-claim against a source, while novel, was 'weak and at best highly tenuous'. In addition, granting leave to file the cross-claim would mean unacceptable delays. For these reasons, Wigney J concluded that both interlocutory applications ought to be refused.

Taxation NPA

Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154

(25 September 2017, Middleton, Gilmour and Jagot JJ)

The liquidators of various companies formerly controlled by the Binetter family commenced proceedings against Nudie entities and other companies claiming equitable compensation effectively equivalent to the tax liabilities of the companies in liquidation. The Nudie entities were granted leave to issue a subpoena to the Commissioner of Taxation, which required the production of 'protected information' as defined in the Taxation Administration Act 1953.

Protected information is not required to be disclosed by the Commissioner of Taxation unless disclosure of it is 'necessary for the purpose of carrying into effect the provisions of a taxation law'. The primary judge found that disclosure of the protected information was necessary in this case because the real purpose of the liquidator proceedings was to recover unpaid tax. The disclosure would be conducive to the recovery of the correct or true amount of tax and would be in the interests of justice.

The Full Court disagreed, finding that the disclosure required by the subpoena could not be said to be 'necessary for the purpose of carrying into effect the provisions of a taxation law' merely because the Commissioner of Taxation was the only external creditor of the companies in liquidation and compensation sought by the liquidators was equivalent to the taxation liabilities which the companies in liquidation owed to the Commissioner.

The Full Court accepted that the issue was to be resolved as one of substance over form. The Full Court also accepted that the Commissioner of Taxation was attempting to secure revenue and was acting in the administration of a taxation law. However, the Full Court ultimately found that the purpose of the disclosure was not to give effect to a provision of a taxation law. The connection between the disclosure and the carrying into effect of a provision of a taxation law was too tenuous and remote. The Full Court noted that the required exercise was evaluative, not discretionary and was not informed by considerations of fairness or justice. The Full Court concluded that the subpoena issued to the Commissioner of Taxation should be set aside.

Federal Court of Australia Annual Report 2017-2018

Decisions of interest

Administrative and Constitutional Law and Human Rights NPA

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

(22 June 2018, Rares, Flick and Rangiah JJ)

A blanket policy of prohibiting mobile phones and SIM cards in detention centres and of removing such items from all detainees for the duration of their detention was found to be invalid in this case.

Rares J found that a positive law was required to authorise such a policy. The policy was not authorised by the power to 'maintain' detention centres, because this power was addressed to upkeep of facilities. It was also not authorised by the search power because this power could not be relied upon to confiscate mobile phones that were not concealed or secreted. The power to 'detain' authorised 'reasonably necessary' action and use of force by authorised officers, however, it was not 'reasonably necessary' to deprive all detainees of their mobile phones, particularly where unmonitored landline telephones and computer internet access would still be provided to effect the same or very similar communication opportunities with persons outside a detention centre.

Rangiah J found that the policy was a 'blanket' one that required authorised officers to confiscate and retain mobile phones and SIM cards, regardless of particular circumstances. Accordingly, the policy was invalid for the additional reason that it was inconsistent with the discretionary powers conferred upon authorised officers to personally and independently make discretionary judgements based upon the particular circumstances that they face.

Flick J agreed with both Rares and Rangiah JJ, in finding that there was not a sufficiently unambiguous source of legislative power to support the policy and it was inconsistent with the discretionary powers otherwise vested in an 'authorised officer'. Even if some statutory source of power could be found, any exercise of such a power would necessarily have to be proportionate to the power conferred. An assessment of proportionality would require taking into account a variety of considerations peculiar to individual detention centres and personal to individual detainees.

Administrative and Constitutional Law and Human Rights NPA

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

(15 January 2018, Kenny, Kerr and Perry JJ)

The appellant ('DAO16') appealed from a decision of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of the Administrative Appeals Tribunal's decision to affirm a decision of the delegate of the Minister for Immigration and Border Protection not to grant DAO16 a protection visa.

DAO16, a citizen of India, claimed he was gay and feared harm in India by reason of his sexuality. This claim was rejected by the Tribunal. It found that DAO16 had falsely claimed to be in a genuine homosexual relationship with a Mr R and that this finding had so 'poisoned the well' that no corroborating evidence could be accepted. Specifically, the Tribunal rejected the evidence of multiple witnesses relied upon by DAO16 as fabricated because most witnesses were associated with Mr R and/or had some connection with protection visa applicants. The Tribunal found that DAO16 was 'prepared to do whatever he considers necessary to assist him to obtain a permanent visa'.

The FCC rejected the contention that the Tribunal had failed to take evidence into account and held that the Tribunal had not engaged in any illogical process of reasoning or made findings unsupported by the evidence.

The Full Court allowed the appeal, holding that the Tribunal's decision demonstrated 'extreme illogicality' and 'lack[ed] an intelligible foundation'. It held that the Tribunal's finding that DAO16's relationship with Mr R was fabricated did not provide a logical or rational basis for rejecting the corroborative evidence of four witnesses in respect of whom there was no evidence of any connection with Mr R or other protection visa applicants. The Full Court held that the Tribunal's reasons did not disclose any attempt to analyse and explain why the evidence of these independent witnesses was found to be fabricated. The Full Court expressed grave concerns as to the reasonableness of the Tribunal's decision in other respects including that many findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. The Full Court also found that the FCC failed to consider fundamental aspects of the appellant's case including the challenge to the Tribunal's treatment of the evidence of the 16 witnesses.

Administrative and Constitutional Law and Human Rights NPA

Hocking v Director-General of National Archives of Australia [2018] FCA 340

(16 March 2018, Griffiths J)

In 1978, a bundle of correspondence between the then Governor-General of Australia, Sir John Kerr, and The Queen (or The Queen's Private Secretary) was placed into the custody of the National Archives of Australia ('the Archives'). The bundle, known as AA1984/609, included letters, telegrams and attachments exchanged between Sir John and The Queen between 1974 and 1977. In accordance with the instrument of deposit, AA1984/609 was to remain sealed until after 8 December 2037, and after this date, was not to be accessed without consultation with the Private Secretary of the day and the Governor-General's Official Secretary of the day.

The applicant, an academic, requested access to the records in AA1984/609 pursuant to the Archives Act 1983 ('the Act'). The request was refused by the Archives, on the basis that the records did not fall within the definition of 'Commonwealth records' as defined in s 3 of the Act. The records did not constitute 'the property of the Commonwealth', nor 'the property of the official establishment of the Governor-General'.

The applicant sought judicial review of the Archives' decision. The primary question before the Court was whether the records in AA1984/609 were Commonwealth records. If they were in fact Commonwealth records, the Act provided for public access 30 years after the records came into existence. If the records were not Commonwealth records, public access was governed by the instrument of deposit. Griffiths J noted that determination of the proceeding depended on the statutory construction of the Act, taking into account its legislative history. Griffiths J concluded that the applicant had not established any reviewable error on the part of the Archives, and that the Archives did not err in finding that the records were properly considered Sir John's personal property.

The primary judge found that private and personal correspondence between Sir John and The Queen has traditionally been regarded as the personal property of the correspondents. Sir John, in providing periodic briefings to The Queen, was not exercising the executive power of the Commonwealth.

In addition, Griffiths J found that the records were not 'the property of the official establishment of the Governor-General'. Although this is not defined in the Act, the Court concluded that the concept referred to persons assisting the Governor-General's performance of official duties, and not necessarily to the position of the Governor-General itself. Griffiths J dismissed the application for judicial review.

An appeal to the Full Court is currently listed for hearing in November 2018.

Admiralty and Maritime NPA

Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132

(16 August 2018, Allsop CJ, Moshinsky and Colvin JJ)

Zetta Jet Pte Ltd and Mr King (a trustee appointed to Zetta Jet under United States insolvency law) alleged that Zetta Jet was the owner in equity of the vessel Dragon Pearl. The Dragon Pearl was arrested in October 2017, and held by the Admiralty Marshal pending determination of the Court proceedings. Those proceedings were dismissed, as was a subsequent appeal.

Following the dismissal of the appeal, the vessel was purchased by Linkage Access Limited ('Linkage') for US$1. Zetta Jet and Mr King brought new proceedings against Linkage to arrest the vessel. Although the application for a warrant was denied, the in rem claim against the Dragon Pearl remained outstanding.

In the course of a third set of proceedings, Zetta Jet and Mr King sought interlocutory injunctions to restrain the removal of the Dragon Pearl from Australian waters, or alienation of title in the vessel pending a trial. In support of the interlocutory injunctions, Mr King claimed that he had applied for recognition as a foreign representative of Zetta Jet under the UNCITRAL Model Law on Cross-Border Insolvency and that he intended to apply for relief under s 588FF of the Corporations Act 2001 in relation to the alleged uncommercial transaction by which the Dragon Pearl was transferred to Linkage.

In reply, Linkage submitted that a res judicata arose in relation to claims in rem by Zetta Jet and Mr King against the vessel by reason of the dismissal of the original proceedings. Linkage proceeded to seek summary dismissal of the second in rem proceeding, which was granted by the primary judge, who accepted the res judicata submissions. An injunction was also refused.

Zetta Jet and Mr King sought leave to appeal. The Full Court found that leave ought to be granted, but concluded that the primary judge did not err in ordering summary dismissal of the in rem proceedings and denying the claim to injunctive relief based upon res judicata principles.

However, the Full Court also found that the primary judge did not separately address the significance for the application for injunctive relief of the foreshadowed claim for relief under s 588FF of the Corporations Act 2001. Accordingly, the Full Court allowed the appeal as to the dismissal of the interlocutory injunction application and remitted the matter to the primary judge to consider whether the uncommercial transaction claim is a sufficient ground on which to order an injunction.

Commercial and Corporations NPA | Commercial Contracts, Banking, Finance and Insurance Sub-Area

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170

(27 October 2017, Allsop CJ, Besanko and O'Callaghan JJ)

Two grandchildren of Mr Langley Hancock commenced proceedings against 15 respondents, including their mother, siblings and various entities in the Hancock Group. It was alleged that following the death of their grandfather, their mother took control of all entities in the Hancock Group and, in breach of her duties as a fiduciary and as a trustee, engineered a situation that gave her children a lesser interest in the family's valuable mining assets than had been agreed.

The Full Court considered an interlocutory application seeking a stay of the Court proceedings and an order referring the parties to arbitration. It was alleged that the applicants had previously given up any right to bring any of the claims made and had in any event agreed that any such claims would be made in confidential arbitral proceedings. The Full Court found that the arbitration contemplated in this case was a 'commercial arbitration'. It was not necessary to demonstrate a pre-existing commercial relationship between the parties. A family or domestic dispute and the arbitration to resolve it could be characterised as a commercial dispute.

The Full Court also found that arbitration clauses should be interpreted liberally where the words permitted that to be done. The correct general approach was that parties did not intend to have their disputes heard in two places. The Full Court construed the words 'any dispute under this deed' to mean the whole dispute or controversy. Construing the word 'dispute' in a way that brought the substantive defence, but not the substantive reply into the purview of the arbitration clause would be contrary to principle because it would provide for dispute resolution in two places.

The Full Court ordered a stay of the whole of the proceedings pending any arbitral reference or until further order, finding that claims against non-parties to the arbitration agreements were also fundamentally adjectival to those involving the parties to the arbitration agreements.

The High Court of Australia granted special leave to appeal and the appeal is currently listed for hearing on 12 October 2018.

Commercial and Corporations NPA | Corporations and Corporate Insolvency Sub-Area

Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40

(21 March 2018, Allsop CJ, Siopis and Farrell JJ)

The Full Court in this case considered a liquidator's application for directions and declarations in relation to a voluntary winding up of a company that had carried on business as the trustee of a trading trust. The questions considered by the Full Court have been the subject of significant academic debate and conflicting decisions over the course of several decades.

The Full Court was unanimous in holding that assets of the trading trust were not assets in the winding up of the trustee company. A liquidator therefore did not have power under the Corporations Act 2001 to sell those assets and required separate permission from the Court to do so. The Full Court was also unanimous in finding that proceeds from the sale of trust assets were not available to pay all creditors of the insolvent corporate trustee and had to be used only to pay trust creditors.

Allsop CJ and Farrell J agreed, for different reasons, that the proceeds of realisation of trust assets should be distributed in accordance with the priority regime in the Corporations Act 2001. Allsop CJ found that the priority regime applied because the proprietary interest of the trustee in the assets otherwise held on trust in support of the right of indemnity by way of exoneration was 'property of the company' for the purposes of the Corporations Act 2001. Farrell J accepted as binding the recent decision of the Victorian Court of Appeal in Re Amerind. Farrell J also observed, and Allsop CJ agreed that, if the distribution was to be in accordance with equitable principle, then there was a sound basis for concluding that Equity would follow the statute by providing for the priority of employees.

Siopis J distinguished Re Amerind and did not agree that 'property of the company' for the purposes of the priority regime included a trustee's right of indemnity by way of exoneration. Siopis J agreed with the majority that it would be open for a court exercising equitable jurisdiction to direct that monies realised from the sale of trust assets should be distributed to trust creditors other than pari passu. In this case, however, Siopis J was not satisfied that directions in those terms should be made as the liquidator had not applied for appointment as a receiver in respect of the sale of trust assets.

Commercial and Corporations NPA | Economic Regulator, Competition and Access Sub-Area

Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751

(24 May 2018, Beach J)

Pecuniary penalty proceedings were brought by the Australian Securities and Investments Commission ('ASIC') against Westpac Banking Corporation ('Westpac') concerning its trading in prime bank bills in the bank bill market between 6 April 2010 and 6 June 2012 with the alleged purpose of influencing the setting of the bank bill swap reference rate ('BBSW'). The BBSW is a key benchmark interest rate in Australian financial markets. Its purpose and function is to provide an independent and transparent reference rate for the pricing and revaluation of Australian dollar derivative instruments, securities and commercial loans.

ASIC claimed that Westpac breached its financial services licensee obligations and had engaged in market manipulation, market rigging, unconscionable conduct, misleading or deceptive conduct and misrepresentation. ASIC contended that during the relevant period, Westpac had developed and pursued a practice of trading prime bank bills with the sole or dominant purpose of influencing the level at which the BBSW was set in a way that was favourable to its BBSW rate set exposure to the disadvantage of counterparties ('Rate Set Trading Practice').

Beach J rejected ASIC's allegation of a Rate Set Trading Practice during the relevant period, but accepted that on four occasions Westpac traders did trade in bank bills with the dominant purpose of influencing the level at which BBSW was set in a way that was favourable to Westpac's BBSW rate set exposure. Beach J was not satisfied that this amounted to market manipulation or market rigging, although Westpac was found to have engaged in unconscionable conduct under the Australian Securities and Investments Commission Act 2001. Beach J found that Westpac's conduct on the four identified occasions was against commercial conscience as informed by the normative standards and their implicit values enshrined in the text, context and purpose of the Australian Securities and Investments Commission Act 2001 specifically and the Corporations Act 2001 generally. Beach J also concluded that by reason of inadequate procedures and training, Westpac contravened its financial services licensee obligations.

Commercial and Corporations NPA | General and Personal Insolvency Sub-Area

Luck v University of Southern Queensland [2018] FCAFC 102

(29 June 2018, Logan, Mortimer and Charlesworth JJ)

A creditor's petition lapses 12 months after its presentation or at the expiration of a period fixed by the bankruptcy court. In this case a petition presented in April 2015 was due to lapse in April 2016 unless validly extended. In March 2016, a registrar of the FCC made a consent order adjourning the further hearing of that petition to May 2016 ('consent order'). It was not brought to the registrar's attention and the registrar was not aware that the petition would lapse prior to this date. In May 2016, the registrar made an order under the 'slip rule' correcting the consent order by extending the life of the creditor's petition ('correcting order'). The Full Court was asked to consider whether the life of the creditor's petition was thus validly extended retrospectively.

The majority of the Full Court agreed that a registrar could rely on the 'slip rule' to make the retrospective correcting order, so the life of the creditor's petition was validly extended. Registrars were expressly given the power to extend the life of a creditor's petition, but not to use the 'slip rule'. Registrars could, however, exercise a power that was 'related to' an expressly delegated power.

Mortimer J found that the exercise of the power under the 'slip rule' in this case 'related to' the expressly delegated power to extend the life of a creditor's petition. The two powers were not 'separate and distinct' because the power under the 'slip rule' was derivative, not free-standing. Mortimer J also found that it was possible to retrospectively extend the life of a creditor's petition under the slip rule because what in law occurred when the slip rule was employed was that the exercise of power was located at the time the omission or failure occurred, here in March 2016. Logan J agreed generally with the reasons for judgment of Mortimer J.

Charlesworth J agreed that the appeal should be dismissed, but on a different legal basis. The reasoning of Charlesworth J differed from the majority in that she found that the registrar could not rely on the slip rule in this case. This was because in March 2016, the registrar had not actually formed an intention to extend the life of the petition and Charlesworth J considered this to be a necessary precondition to the registrar's use of the slip rule.

An application for special leave to appeal is currently pending in the High Court of Australia.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165

(25 October 2017, Greenwood, Nicholas and Burley JJ)

In advance of the 2016 Summer Olympic Games, Telstra commenced a marketing campaign, promoting the availability of live events streamed from the Olympics by Seven Network. The Australian Olympic Committee ('AOC') contended that Telstra's campaign used protected Olympic expressions, including 'Olympic' and 'Olympic Games', in breach of the Olympic Insignia Protection Act 1987 (Cth) ('OIP Act'). The AOC also alleged that the Telstra campaign breached the Australian Consumer Law ('ACL') by conveying a false representation, or by having a tendency to cause people erroneously to assume, that Telstra or its products or services had some form of affiliation or sponsorship like arrangement with the Olympic Games, the Olympic movement, the AOC or another Olympic body.

The primary judge concluded that Telstra's campaign did not evoke a connection with a relevant Olympic body, either for the purpose of the OIP Act claim or the ACL claim. It was not enough for the AOC to prove that the campaign was Olympic themed. The primary judge found that Telstra effectively promoted its sponsorship arrangement with the Seven Network by conveying an impression that its customers could get premium access to Seven Network's coverage of the Olympic Games on their mobile devices.

The Full Court observed that it was not helpful that the grounds of appeal were broadly expressed and amounted to little more than assertions that the primary judge fell into error by not deciding in accordance with the AOC's case. The Full Court emphasised that on appeal, the primary judge's views on the effect of the advertisements and the representations and suggestions they conveyed should be given considerable weight unless those views were shown to be affected by some relevant error of law or fact. The Full Court found it was plainly open to the primary judge to reject the contention that a viewer would consider a disclaimer that Telstra was not an 'official sponsor of the Olympic Games', as an assertion that it was an unofficial sponsor. After reviewing the evidence at trial afresh, the Full Court concluded that no error had been demonstrated by the AOC and dismissed the appeal.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224

(22 December 2017, Dowsett, McKerracher and Moshinsky JJ)

Valve is a United States based company that operates an online game distribution network with more than two million Australian subscriber accounts. It was alleged that Valve made misrepresentations in its refund policies, including by claiming that it had no obligation to offer refunds or to comply with Australian consumer guarantees. Valve claimed that its refund policies were not misleading because it was not bound by Australian consumer guarantees. This was because the relevant supplies were made pursuant to contracts that were governed by United States law. Valve also contended that the representations were not made in Australia and that it did not carry on business in Australia.

The primary judge found that some of the alleged representations were made and were misleading. The primary judge imposed a pecuniary penalty of $3 million and ordered other relief, including corrective advertising and a compliance program. The Full Court dismissed Valve's appeal and also a cross-appeal from the decision of the primary judge.

The Full Court did not accept that Australian consumer guarantee provisions could not cover supplies pursuant to contracts governed by foreign law. The Full Court found it would be inconsistent with the statutory scheme to so limit the scope of operation of Australian consumer guarantees.

The Full Court also found that, in substance, the representations were made in Australia. They were addressed to customers in Australia and this is where they were accessed and read. The representations could be taken to have been made in Australia even if Valve was based in the United States and the representations were also available to be accessed by consumers in other countries.

The Full Court found no error in the primary judge's conclusion that Valve was carrying on business in Australia. Not only did Valve engage in transactions with a large number of Australian consumers, it owned servers in Australia upon which content was 'deposited' when requested by its Australian customers. There was a series or a repetition of acts in Australia that formed part of the conduct of Valve's business.

The Full Court did not consider the penalty of $3 million to be manifestly excessive and found no error in relation to the other relief that had been ordered by the primary judge.

Employment and Industrial Relations NPA

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

(11 October 2017, North, Tracey, Flick, Jagot and Bromberg JJ)

As part of its four yearly review of modern awards as prescribed by s 156 of the Fair Work Act 2009 ('the Act'), the Fair Work Commission ('FWC') made determinations to vary multiple awards by reducing the Sunday and holiday penalty rates and other employee entitlements from 1 July 2017. The FWC considered that the penalty rates, as they then were, did not achieve the modern awards objective set out in s 134(1) of the Act, as they did not provide a fair and relevant minimum safety net.

Two unions, the Shop, Distributive and Allied Employees Association and United Voice ('the applicants'), sought judicial review of the FWC's determinations in this Court, submitting that the FWC lacked power under s 156 of the Act to make a determination to vary the award without having first satisfied itself that there had been a material change in circumstances since the previous review. The Full Court rejected this ground, finding that the FWC's power is not conditional upon it being satisfied that a material change has occurred.

The applicants also argued that the FWC misunderstood the nature of the inquiry required under s 134 of the Act, ultimately misconstruing 'relevant' in the phrase 'fair and relevant minimum safety net' as meaning that the award must be suited to contemporary circumstances, instead of by reference to only the factors at s 134(1)(a)-(h), which the applicants contended were exhaustive. The Full Court considered the phrase 'fair and relevant' to be a composite phrase, and held that while those matters in s 134(1)(a)-(h) inform the evaluation of what is a 'fair and relevant minimum safety net of terms and conditions', the FWC is not confined to consideration of those matters only.

In reaching its decision, the Full Court reiterated that its task is limited to reviewing the FWC's decision-making processes for jurisdictional error, and does not extend to assessing the correctness or the merits of the FWC's conclusions.

Having concluded that the FWC's decision, read as a whole, does not disclose any jurisdictional error, the Full Court ordered that each of the applications be dismissed.

Federal Crime and Related NPA

SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609

(30 April 2018, Bromwich J)

In February 2018, four search warrants were issued for execution at addresses in Melbourne and in the Australian Capital Territory in the course of an Australian Federal Police investigation targeted at SMEC Holdings Pty Ltd ('SMEC'). SMEC and several of its employees or officers brought four proceedings seeking judicial review, challenging the issue of the search warrants, their validity on their face and their execution. Interlocutory applications for discovery were also filed. While the parties were able to reach a consent position in relation to discovery pertaining to the execution of the search warrants, the Commissioner continued to oppose orders for discovery in relation to the material before the officers issuing the search warrants.

The central question was whether the applicants had established a sufficient basis for the Court to exercise its discretion to order the Commissioner to discover the material that was before the issuing officers. Among other assertions, the applicants argued that the issuing officers could not have been satisfied, on the basis of the information before them, that there were reasonable grounds to suspect that items described in the warrant, and located at the premises, would afford evidence of the offences. The applicants also claimed that the warrants were invalid, in circumstances where the applicants asserted they did not commit the offences specified in the warrants.

Bromwich J observed that, under s 3E of the Crimes Act 1914, an application for the issue of a search warrant only has to meet a 'low threshold requirement' and so it is difficult to establish that a search warrant has been invalidly issued, by reason of insufficient material before the issuing officer.

Bromwich J further noted that obtaining and executing a search warrant does not constitute any allegation, at that stage, that offences have been committed. It is clear, on the face of each of the four search warrants, that they were obtained on the grounds of no more than a suspicion by the warrant applicant that offences had occurred. Accordingly, claiming one's innocence is not of significant value. Such a claim cannot establish that the suspicion is unreasonably held, nor can it be a sound basis for inferring a lack of sufficient grounds for the issue of a search warrant.

Orders for discovery in relation to the execution of the search warrants were made by consent. The interlocutory applications for discovery were otherwise dismissed.

Intellectual Property NPA | Copyright Sub-Area

Career Step, LLC v TalentMed Pty Ltd (No 2) [2018] FCA 132

(28 February 2018, Robertson J)

Career Step, a company based in the United States, brought claims against TalentMed, an Australian company, for copyright infringement under the Copyright Act 1968 ('the Act'). Career Step provided an online educational course for those training to be medical transcriptionists. Career Step claimed that TalentMed copied portions of its course, provided under licence, to develop its own materials to offer a competing course to students.

In response, TalentMed and its two directors (together 'the respondents') asserted that Career Step had failed to establish subsistence or ownership of copyright in the work relied upon. The respondents further submitted that TalentMed had not infringed copyright in any alleged work, and neither director was accessorially liable.

Robertson J concluded that TalentMed's first version of its course 'took a substantial part of Career Step's copyright in the work' and that such copyings were not generic, although this was not found in relation to TalentMed's second iteration. It was also accepted that the directors authorised the copying.

Robertson J rejected the respondents' contention that Career Step had failed to evidence the pleaded copyright work, which was found to be the course content, including text containing information, case studies, graphs, diagrams, quizzes and exams, developed by employees and contractors of Career Step operating together. Robertson J accepted Career Step's submission that the course content constituted an original literary work, and more specifically, a work of joint ownership in accordance with the definition in s 10 of the Act. Robertson J was not satisfied that a work consisting of modules could not be a single work. Robertson J found that it was not necessary for each of the writers to contribute to each of the modules before a claim to joint ownership could be established. It was sufficient that the authors, as members of the group constituted for a common purpose, had been identified.

Robertson J also found that ownership lay with Career Step. This was because, by virtue of s 35(6) of the Act, Career Step as employer became the owner of copyright in the work product of the employees, and by s 196 of the Act, became the owner of copyright in the work product of the contractors by virtue of assignments. Declarations reflecting the respondents' infringement were made.

Intellectual Property NPA | Patents and Associated Statutes Sub-Area

Warner-Lambert Company LLC v Apotex Pty Limited (No 2) [2018] FCAFC 26

(23 February 2018, Jagot, Yates and Burley JJ)

Apotex challenged, on grounds of insufficiency and false suggestion, the validity of Pfizer's patent for a new therapeutic use of Lyrica (pregabalin) in pain therapy. The primary judge found the patent was sufficient and that a false suggestion was not material to its grant. The primary judge also found threatened infringement by Apotex.

The Full Court found no error in the primary judge's conclusions in relation to sufficiency. The Full Court accepted that the invention was a broad one directed to a new therapeutic use, not more specific matters such as dosage. The character of the invention was important when considering the description that will be sufficient. The relevant question was whether the specification described the invention fully, not what else was necessary for regulatory approval. There was a difference between whether a person skilled in the art could perform the invention based on the description in the specification and whether a clinician would choose to do so.

The primary judge did not agree that the description of the invention left a person skilled in the art with too much work to do, reasoning that if the steps required to be taken to work the invention were readily apparent and routine, then the test for sufficiency would be satisfied. The Full Court saw no error in this approach, nor in the finding of fact that the work required in the present case was routine for the person skilled in the art.

The Full Court found it was plainly open to the primary judge to conclude that the false suggestion was not a material factor that led to the grant of the patent. The Full Court found that the relevant claims would not lack fair basis even if the reference to testing that included the false suggestion had been omitted.

The Full Court also agreed with the primary judge that there was no reason to read down the definition of 'exploit' to found any territorial limitation. The relevant act of infringement was not the use of the method outside the patent area but the exploitation (by importation and sale) in Australia of a product made using the patented method. Thus a Swiss-style claim could be infringed by a threat to import and supply medicaments made outside of the patent area by a third party.

Intellectual Property NPA | Trade Marks Sub-Area

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93

(22 June 2018, Allsop CJ, Perram and Markovic JJ)

Since 2007, Moroccanoil has produced and distributed 'high-end' hair and skin care products containing argan oil from Morocco. Moroccanoil sought to register this word as a trade mark in relation to hair care products in 2011. In the same year, Aldi became aware that argan oil products were 'on-trend' and decided to produce their own range of argan oil hair care products under the brand 'Protane Naturals'. Aldi opposed the registration of the Moroccanoil trade mark and Moroccanoil claimed that the manner in which Aldi sold its argan oil products constituted misleading or deceptive conduct.

The primary judge found that the packaging of Aldi's products misleadingly conveyed that they were substantially comprised of natural ingredients and that their claimed benefits resulted from argan oil. The primary judge also found that the way in which the word 'Moroccanoil' had been used by Moroccanoil made it capable of distinguishing Moroccanoil's goods. The primary judge found that the trade mark could therefore proceed to registration.

The Full Court unanimously allowed the trade mark appeal, finding that the wordmark 'Moroccanoil' really just meant 'oil from Morocco' and was not inherently adapted to distinguish, nor capable of distinguishing by reason of use, Moroccanoil's products from those of other traders selling argan oil based hair care products.

The Full Court was also unanimous in finding that the word 'Naturals' on the packaging of the Aldi products did not convey to the ordinary reasonable consumer that the products were comprised of substantially natural ingredients. The primary judge fell into error by asking the wrong question, namely whether the ingredients in the products could be described as 'natural'.

In relation to the claimed benefits of the Aldi products, Perram J did not consider the labelling to suggest that the claimed benefits were derived from the presence of argan oil, but found this difference of opinion did not bespeak error for the purposes of appellate review. Allsop CJ and Markovic J both agreed with the primary judge.

Allsop CJ and Perram J also made some important observations about the nature of appellate review. In particular, they criticised a test of 'plainly and obviously wrong' as lacking the necessary nuance and setting the standard of appellate review higher than it should be.

Native Title NPA

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36

(16 March 2018, Reeves, Jagot and White JJ)

These appeals concern competing and entirely overlapping native title claims over the same claim area, known as Lake Torrens. Native title had been found to exist in favour of each of the appellants, the Kokatha People, the Adnyamathanha People and the Barngarla People, over separate areas of land surrounding Lake Torrens. The Full Court by majority held that all three appeals should be dismissed.

All of the native title applicants were unsuccessful before the primary judge. The primary judge found that the claimed rights and interests of the Kokatha People were contemporary in origin. The primary judge also found that neither the Adnyamathanha People nor the Barngarla People were able to establish a continual substantially uninterrupted connection with the claim area, in accordance with the traditional laws and customs held with respect to the area at sovereignty.

Reeves J found that the deficiency in the appeal by the Kokatha People was that their lay evidence did not take the Kokatha People's connection to Lake Torrens anywhere near sovereignty. Reeves J rejected submissions that the primary judge erred in his findings, including in relation to their rights and interests in the claim area, the significant objects shown in an evidence session and ethnographic surveys. Reeves J found that 'nothing has been advanced … to show why his Honour was wrong'.

Reeves J also rejected the appeal by the Adnyamathanha People. Reeves J found that the primary judge did not misapply the test for connection under the Native Title Act 1993, finding that 'occupation' was not mistakenly used in the Western sense. Reeves J did not accept that the primary judge erred by misusing the effect of the previous three consent determinations of the area around Lake Torrens. Reeves J also dismissed the appeal by the Barngarla People, finding that many grounds were confined to challenging findings the primary judge made, which were to a substantial degree based upon the witnesses' credibility.

White J agreed with the reasons given by Reeves J. White J emphasised that the Full Court should 'recognise the advantages of the primary judge arising … from his Honour having seen and heard the evidence given'.

In a dissenting judgment, Jagot J found the appeals should have been allowed. In considering the primary judge's treatment of the prior determinations of native title, Jagot J noted 'the Kokatha determination did not establish … that the Adnyamathanha and the Barngarla Peoples did not have rights and interests under their traditional laws and customs by which they had a connection with the Kokatha determination area pre-sovereignty or at any time thereafter until the date of the determination itself'. Jagot J also accepted that the primary judge erred in consideration of some evidence, so would have allowed the Kokatha appeal.

An application for special leave to appeal is currently pending in the High Court of Australia.

Other Federal Jurisdiction NPA

Rush v Nationwide News Pty Limited (No 2) [2018] FCA 550

(20 August 2018, Wigney J)

This matter concerns defamation claims brought by Mr Rush against Nationwide News Pty Ltd and its journalist, Mr Moran (together 'the respondents'). During the course of proceedings, the respondents filed two interlocutory applications, both of which were opposed by Mr Rush. Wigney J dismissed both applications.

In the first interlocutory application the respondents sought leave to file a further amended defence, which proposed two 'substantive and substantial' amendments to the current defence. The first amendment proposed to reinsert parts of the qualified privilege defence, previously struck out by Wigney J in an earlier judgment. The respondents submitted that the proposed paragraphs were 'directly relevant background context', and material to the mitigation of damages, rather than as particulars of the qualified privilege defence, in accordance with the principles outlined in Burstein's Case. The second amendment also proposed to reinsert paragraphs previously struck out as particulars of the pleaded qualified privilege defence. Wigney J found that the paragraphs that the respondents sought to be reintroduced into their defence did not fall within the principles in Burstein's Case. Rather, the paragraphs comprised little more than hearsay statements about allegations that had been made about Mr Rush, or rumour or innuendo, or facts about this that did not bear at all on Mr Rush's reputation. In relation to the second proposed amendment, Wigney J noted that he had already found, in an earlier judgment, those paragraphs to be irrelevant to their defence of qualified privilege. Finally, Wigney J noted that the respondents had not yet offered a satisfactory reason for their delay in seeking leave to amend.

In the second interlocutory application, the respondents sought leave to file a cross-claim out of time, naming the Sydney Theatre Company ('the STC') as a cross-respondent and alleging that the STC also defamed Mr Rush. Wigney J considered that the proposed cross-claim against a source, while novel, was 'weak and at best highly tenuous'. In addition, granting leave to file the cross-claim would mean unacceptable delays. For these reasons, Wigney J concluded that both interlocutory applications ought to be refused.

Taxation NPA

Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154

(25 September 2017, Middleton, Gilmour and Jagot JJ)

The liquidators of various companies formerly controlled by the Binetter family commenced proceedings against Nudie entities and other companies claiming equitable compensation effectively equivalent to the tax liabilities of the companies in liquidation. The Nudie entities were granted leave to issue a subpoena to the Commissioner of Taxation, which required the production of 'protected information' as defined in the Taxation Administration Act 1953.

Protected information is not required to be disclosed by the Commissioner of Taxation unless disclosure of it is 'necessary for the purpose of carrying into effect the provisions of a taxation law'. The primary judge found that disclosure of the protected information was necessary in this case because the real purpose of the liquidator proceedings was to recover unpaid tax. The disclosure would be conducive to the recovery of the correct or true amount of tax and would be in the interests of justice.

The Full Court disagreed, finding that the disclosure required by the subpoena could not be said to be 'necessary for the purpose of carrying into effect the provisions of a taxation law' merely because the Commissioner of Taxation was the only external creditor of the companies in liquidation and compensation sought by the liquidators was equivalent to the taxation liabilities which the companies in liquidation owed to the Commissioner.

The Full Court accepted that the issue was to be resolved as one of substance over form. The Full Court also accepted that the Commissioner of Taxation was attempting to secure revenue and was acting in the administration of a taxation law. However, the Full Court ultimately found that the purpose of the disclosure was not to give effect to a provision of a taxation law. The connection between the disclosure and the carrying into effect of a provision of a taxation law was too tenuous and remote. The Full Court noted that the required exercise was evaluative, not discretionary and was not informed by considerations of fairness or justice. The Full Court concluded that the subpoena issued to the Commissioner of Taxation should be set aside.

Federal Court of Australia Annual Report 2017-2018

Decisions of interest

Administrative and Constitutional Law and Human Rights NPA

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

(22 June 2018, Rares, Flick and Rangiah JJ)

A blanket policy of prohibiting mobile phones and SIM cards in detention centres and of removing such items from all detainees for the duration of their detention was found to be invalid in this case.

Rares J found that a positive law was required to authorise such a policy. The policy was not authorised by the power to 'maintain' detention centres, because this power was addressed to upkeep of facilities. It was also not authorised by the search power because this power could not be relied upon to confiscate mobile phones that were not concealed or secreted. The power to 'detain' authorised 'reasonably necessary' action and use of force by authorised officers, however, it was not 'reasonably necessary' to deprive all detainees of their mobile phones, particularly where unmonitored landline telephones and computer internet access would still be provided to effect the same or very similar communication opportunities with persons outside a detention centre.

Rangiah J found that the policy was a 'blanket' one that required authorised officers to confiscate and retain mobile phones and SIM cards, regardless of particular circumstances. Accordingly, the policy was invalid for the additional reason that it was inconsistent with the discretionary powers conferred upon authorised officers to personally and independently make discretionary judgements based upon the particular circumstances that they face.

Flick J agreed with both Rares and Rangiah JJ, in finding that there was not a sufficiently unambiguous source of legislative power to support the policy and it was inconsistent with the discretionary powers otherwise vested in an 'authorised officer'. Even if some statutory source of power could be found, any exercise of such a power would necessarily have to be proportionate to the power conferred. An assessment of proportionality would require taking into account a variety of considerations peculiar to individual detention centres and personal to individual detainees.

Administrative and Constitutional Law and Human Rights NPA

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

(15 January 2018, Kenny, Kerr and Perry JJ)

The appellant ('DAO16') appealed from a decision of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of the Administrative Appeals Tribunal's decision to affirm a decision of the delegate of the Minister for Immigration and Border Protection not to grant DAO16 a protection visa.

DAO16, a citizen of India, claimed he was gay and feared harm in India by reason of his sexuality. This claim was rejected by the Tribunal. It found that DAO16 had falsely claimed to be in a genuine homosexual relationship with a Mr R and that this finding had so 'poisoned the well' that no corroborating evidence could be accepted. Specifically, the Tribunal rejected the evidence of multiple witnesses relied upon by DAO16 as fabricated because most witnesses were associated with Mr R and/or had some connection with protection visa applicants. The Tribunal found that DAO16 was 'prepared to do whatever he considers necessary to assist him to obtain a permanent visa'.

The FCC rejected the contention that the Tribunal had failed to take evidence into account and held that the Tribunal had not engaged in any illogical process of reasoning or made findings unsupported by the evidence.

The Full Court allowed the appeal, holding that the Tribunal's decision demonstrated 'extreme illogicality' and 'lack[ed] an intelligible foundation'. It held that the Tribunal's finding that DAO16's relationship with Mr R was fabricated did not provide a logical or rational basis for rejecting the corroborative evidence of four witnesses in respect of whom there was no evidence of any connection with Mr R or other protection visa applicants. The Full Court held that the Tribunal's reasons did not disclose any attempt to analyse and explain why the evidence of these independent witnesses was found to be fabricated. The Full Court expressed grave concerns as to the reasonableness of the Tribunal's decision in other respects including that many findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. The Full Court also found that the FCC failed to consider fundamental aspects of the appellant's case including the challenge to the Tribunal's treatment of the evidence of the 16 witnesses.

Administrative and Constitutional Law and Human Rights NPA

Hocking v Director-General of National Archives of Australia [2018] FCA 340

(16 March 2018, Griffiths J)

In 1978, a bundle of correspondence between the then Governor-General of Australia, Sir John Kerr, and The Queen (or The Queen's Private Secretary) was placed into the custody of the National Archives of Australia ('the Archives'). The bundle, known as AA1984/609, included letters, telegrams and attachments exchanged between Sir John and The Queen between 1974 and 1977. In accordance with the instrument of deposit, AA1984/609 was to remain sealed until after 8 December 2037, and after this date, was not to be accessed without consultation with the Private Secretary of the day and the Governor-General's Official Secretary of the day.

The applicant, an academic, requested access to the records in AA1984/609 pursuant to the Archives Act 1983 ('the Act'). The request was refused by the Archives, on the basis that the records did not fall within the definition of 'Commonwealth records' as defined in s 3 of the Act. The records did not constitute 'the property of the Commonwealth', nor 'the property of the official establishment of the Governor-General'.

The applicant sought judicial review of the Archives' decision. The primary question before the Court was whether the records in AA1984/609 were Commonwealth records. If they were in fact Commonwealth records, the Act provided for public access 30 years after the records came into existence. If the records were not Commonwealth records, public access was governed by the instrument of deposit. Griffiths J noted that determination of the proceeding depended on the statutory construction of the Act, taking into account its legislative history. Griffiths J concluded that the applicant had not established any reviewable error on the part of the Archives, and that the Archives did not err in finding that the records were properly considered Sir John's personal property.

The primary judge found that private and personal correspondence between Sir John and The Queen has traditionally been regarded as the personal property of the correspondents. Sir John, in providing periodic briefings to The Queen, was not exercising the executive power of the Commonwealth.

In addition, Griffiths J found that the records were not 'the property of the official establishment of the Governor-General'. Although this is not defined in the Act, the Court concluded that the concept referred to persons assisting the Governor-General's performance of official duties, and not necessarily to the position of the Governor-General itself. Griffiths J dismissed the application for judicial review.

An appeal to the Full Court is currently listed for hearing in November 2018.

Admiralty and Maritime NPA

Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132

(16 August 2018, Allsop CJ, Moshinsky and Colvin JJ)

Zetta Jet Pte Ltd and Mr King (a trustee appointed to Zetta Jet under United States insolvency law) alleged that Zetta Jet was the owner in equity of the vessel Dragon Pearl. The Dragon Pearl was arrested in October 2017, and held by the Admiralty Marshal pending determination of the Court proceedings. Those proceedings were dismissed, as was a subsequent appeal.

Following the dismissal of the appeal, the vessel was purchased by Linkage Access Limited ('Linkage') for US$1. Zetta Jet and Mr King brought new proceedings against Linkage to arrest the vessel. Although the application for a warrant was denied, the in rem claim against the Dragon Pearl remained outstanding.

In the course of a third set of proceedings, Zetta Jet and Mr King sought interlocutory injunctions to restrain the removal of the Dragon Pearl from Australian waters, or alienation of title in the vessel pending a trial. In support of the interlocutory injunctions, Mr King claimed that he had applied for recognition as a foreign representative of Zetta Jet under the UNCITRAL Model Law on Cross-Border Insolvency and that he intended to apply for relief under s 588FF of the Corporations Act 2001 in relation to the alleged uncommercial transaction by which the Dragon Pearl was transferred to Linkage.

In reply, Linkage submitted that a res judicata arose in relation to claims in rem by Zetta Jet and Mr King against the vessel by reason of the dismissal of the original proceedings. Linkage proceeded to seek summary dismissal of the second in rem proceeding, which was granted by the primary judge, who accepted the res judicata submissions. An injunction was also refused.

Zetta Jet and Mr King sought leave to appeal. The Full Court found that leave ought to be granted, but concluded that the primary judge did not err in ordering summary dismissal of the in rem proceedings and denying the claim to injunctive relief based upon res judicata principles.

However, the Full Court also found that the primary judge did not separately address the significance for the application for injunctive relief of the foreshadowed claim for relief under s 588FF of the Corporations Act 2001. Accordingly, the Full Court allowed the appeal as to the dismissal of the interlocutory injunction application and remitted the matter to the primary judge to consider whether the uncommercial transaction claim is a sufficient ground on which to order an injunction.

Commercial and Corporations NPA | Commercial Contracts, Banking, Finance and Insurance Sub-Area

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170

(27 October 2017, Allsop CJ, Besanko and O'Callaghan JJ)

Two grandchildren of Mr Langley Hancock commenced proceedings against 15 respondents, including their mother, siblings and various entities in the Hancock Group. It was alleged that following the death of their grandfather, their mother took control of all entities in the Hancock Group and, in breach of her duties as a fiduciary and as a trustee, engineered a situation that gave her children a lesser interest in the family's valuable mining assets than had been agreed.

The Full Court considered an interlocutory application seeking a stay of the Court proceedings and an order referring the parties to arbitration. It was alleged that the applicants had previously given up any right to bring any of the claims made and had in any event agreed that any such claims would be made in confidential arbitral proceedings. The Full Court found that the arbitration contemplated in this case was a 'commercial arbitration'. It was not necessary to demonstrate a pre-existing commercial relationship between the parties. A family or domestic dispute and the arbitration to resolve it could be characterised as a commercial dispute.

The Full Court also found that arbitration clauses should be interpreted liberally where the words permitted that to be done. The correct general approach was that parties did not intend to have their disputes heard in two places. The Full Court construed the words 'any dispute under this deed' to mean the whole dispute or controversy. Construing the word 'dispute' in a way that brought the substantive defence, but not the substantive reply into the purview of the arbitration clause would be contrary to principle because it would provide for dispute resolution in two places.

The Full Court ordered a stay of the whole of the proceedings pending any arbitral reference or until further order, finding that claims against non-parties to the arbitration agreements were also fundamentally adjectival to those involving the parties to the arbitration agreements.

The High Court of Australia granted special leave to appeal and the appeal is currently listed for hearing on 12 October 2018.

Commercial and Corporations NPA | Corporations and Corporate Insolvency Sub-Area

Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40

(21 March 2018, Allsop CJ, Siopis and Farrell JJ)

The Full Court in this case considered a liquidator's application for directions and declarations in relation to a voluntary winding up of a company that had carried on business as the trustee of a trading trust. The questions considered by the Full Court have been the subject of significant academic debate and conflicting decisions over the course of several decades.

The Full Court was unanimous in holding that assets of the trading trust were not assets in the winding up of the trustee company. A liquidator therefore did not have power under the Corporations Act 2001 to sell those assets and required separate permission from the Court to do so. The Full Court was also unanimous in finding that proceeds from the sale of trust assets were not available to pay all creditors of the insolvent corporate trustee and had to be used only to pay trust creditors.

Allsop CJ and Farrell J agreed, for different reasons, that the proceeds of realisation of trust assets should be distributed in accordance with the priority regime in the Corporations Act 2001. Allsop CJ found that the priority regime applied because the proprietary interest of the trustee in the assets otherwise held on trust in support of the right of indemnity by way of exoneration was 'property of the company' for the purposes of the Corporations Act 2001. Farrell J accepted as binding the recent decision of the Victorian Court of Appeal in Re Amerind. Farrell J also observed, and Allsop CJ agreed that, if the distribution was to be in accordance with equitable principle, then there was a sound basis for concluding that Equity would follow the statute by providing for the priority of employees.

Siopis J distinguished Re Amerind and did not agree that 'property of the company' for the purposes of the priority regime included a trustee's right of indemnity by way of exoneration. Siopis J agreed with the majority that it would be open for a court exercising equitable jurisdiction to direct that monies realised from the sale of trust assets should be distributed to trust creditors other than pari passu. In this case, however, Siopis J was not satisfied that directions in those terms should be made as the liquidator had not applied for appointment as a receiver in respect of the sale of trust assets.

Commercial and Corporations NPA | Economic Regulator, Competition and Access Sub-Area

Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751

(24 May 2018, Beach J)

Pecuniary penalty proceedings were brought by the Australian Securities and Investments Commission ('ASIC') against Westpac Banking Corporation ('Westpac') concerning its trading in prime bank bills in the bank bill market between 6 April 2010 and 6 June 2012 with the alleged purpose of influencing the setting of the bank bill swap reference rate ('BBSW'). The BBSW is a key benchmark interest rate in Australian financial markets. Its purpose and function is to provide an independent and transparent reference rate for the pricing and revaluation of Australian dollar derivative instruments, securities and commercial loans.

ASIC claimed that Westpac breached its financial services licensee obligations and had engaged in market manipulation, market rigging, unconscionable conduct, misleading or deceptive conduct and misrepresentation. ASIC contended that during the relevant period, Westpac had developed and pursued a practice of trading prime bank bills with the sole or dominant purpose of influencing the level at which the BBSW was set in a way that was favourable to its BBSW rate set exposure to the disadvantage of counterparties ('Rate Set Trading Practice').

Beach J rejected ASIC's allegation of a Rate Set Trading Practice during the relevant period, but accepted that on four occasions Westpac traders did trade in bank bills with the dominant purpose of influencing the level at which BBSW was set in a way that was favourable to Westpac's BBSW rate set exposure. Beach J was not satisfied that this amounted to market manipulation or market rigging, although Westpac was found to have engaged in unconscionable conduct under the Australian Securities and Investments Commission Act 2001. Beach J found that Westpac's conduct on the four identified occasions was against commercial conscience as informed by the normative standards and their implicit values enshrined in the text, context and purpose of the Australian Securities and Investments Commission Act 2001 specifically and the Corporations Act 2001 generally. Beach J also concluded that by reason of inadequate procedures and training, Westpac contravened its financial services licensee obligations.

Commercial and Corporations NPA | General and Personal Insolvency Sub-Area

Luck v University of Southern Queensland [2018] FCAFC 102

(29 June 2018, Logan, Mortimer and Charlesworth JJ)

A creditor's petition lapses 12 months after its presentation or at the expiration of a period fixed by the bankruptcy court. In this case a petition presented in April 2015 was due to lapse in April 2016 unless validly extended. In March 2016, a registrar of the FCC made a consent order adjourning the further hearing of that petition to May 2016 ('consent order'). It was not brought to the registrar's attention and the registrar was not aware that the petition would lapse prior to this date. In May 2016, the registrar made an order under the 'slip rule' correcting the consent order by extending the life of the creditor's petition ('correcting order'). The Full Court was asked to consider whether the life of the creditor's petition was thus validly extended retrospectively.

The majority of the Full Court agreed that a registrar could rely on the 'slip rule' to make the retrospective correcting order, so the life of the creditor's petition was validly extended. Registrars were expressly given the power to extend the life of a creditor's petition, but not to use the 'slip rule'. Registrars could, however, exercise a power that was 'related to' an expressly delegated power.

Mortimer J found that the exercise of the power under the 'slip rule' in this case 'related to' the expressly delegated power to extend the life of a creditor's petition. The two powers were not 'separate and distinct' because the power under the 'slip rule' was derivative, not free-standing. Mortimer J also found that it was possible to retrospectively extend the life of a creditor's petition under the slip rule because what in law occurred when the slip rule was employed was that the exercise of power was located at the time the omission or failure occurred, here in March 2016. Logan J agreed generally with the reasons for judgment of Mortimer J.

Charlesworth J agreed that the appeal should be dismissed, but on a different legal basis. The reasoning of Charlesworth J differed from the majority in that she found that the registrar could not rely on the slip rule in this case. This was because in March 2016, the registrar had not actually formed an intention to extend the life of the petition and Charlesworth J considered this to be a necessary precondition to the registrar's use of the slip rule.

An application for special leave to appeal is currently pending in the High Court of Australia.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Australian Olympic Committee, Inc v Telstra Corporation Limited[2017] FCAFC 165

(25 October 2017, Greenwood, Nicholas and Burley JJ)

In advance of the 2016 Summer Olympic Games, Telstra commenced a marketing campaign, promoting the availability of live events streamed from the Olympics by Seven Network. The Australian Olympic Committee ('AOC') contended that Telstra's campaign used protected Olympic expressions, including 'Olympic' and 'Olympic Games', in breach of the Olympic Insignia Protection Act 1987 (Cth) ('OIP Act'). The AOC also alleged that the Telstra campaign breached the Australian Consumer Law ('ACL') by conveying a false representation, or by having a tendency to cause people erroneously to assume, that Telstra or its products or services had some form of affiliation or sponsorship like arrangement with the Olympic Games, the Olympic movement, the AOC or another Olympic body.

The primary judge concluded that Telstra's campaign did not evoke a connection with a relevant Olympic body, either for the purpose of the OIP Act claim or the ACL claim. It was not enough for the AOC to prove that the campaign was Olympic themed. The primary judge found that Telstra effectively promoted its sponsorship arrangement with the Seven Network by conveying an impression that its customers could get premium access to Seven Network's coverage of the Olympic Games on their mobile devices.

The Full Court observed that it was not helpful that the grounds of appeal were broadly expressed and amounted to little more than assertions that the primary judge fell into error by not deciding in accordance with the AOC's case. The Full Court emphasised that on appeal, the primary judge's views on the effect of the advertisements and the representations and suggestions they conveyed should be given considerable weight unless those views were shown to be affected by some relevant error of law or fact. The Full Court found it was plainly open to the primary judge to reject the contention that a viewer would consider a disclaimer that Telstra was not an 'official sponsor of the Olympic Games', as an assertion that it was an unofficial sponsor. After reviewing the evidence at trial afresh, the Full Court concluded that no error had been demonstrated by the AOC and dismissed the appeal.

Commercial and Corporations NPA | Regulator and Consumer Protection Sub-Area

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224

(22 December 2017, Dowsett, McKerracher and Moshinsky JJ)

Valve is a United States based company that operates an online game distribution network with more than two million Australian subscriber accounts. It was alleged that Valve made misrepresentations in its refund policies, including by claiming that it had no obligation to offer refunds or to comply with Australian consumer guarantees. Valve claimed that its refund policies were not misleading because it was not bound by Australian consumer guarantees. This was because the relevant supplies were made pursuant to contracts that were governed by United States law. Valve also contended that the representations were not made in Australia and that it did not carry on business in Australia.

The primary judge found that some of the alleged representations were made and were misleading. The primary judge imposed a pecuniary penalty of $3 million and ordered other relief, including corrective advertising and a compliance program. The Full Court dismissed Valve's appeal and also a cross-appeal from the decision of the primary judge.

The Full Court did not accept that Australian consumer guarantee provisions could not cover supplies pursuant to contracts governed by foreign law. The Full Court found it would be inconsistent with the statutory scheme to so limit the scope of operation of Australian consumer guarantees.

The Full Court also found that, in substance, the representations were made in Australia. They were addressed to customers in Australia and this is where they were accessed and read. The representations could be taken to have been made in Australia even if Valve was based in the United States and the representations were also available to be accessed by consumers in other countries.

The Full Court found no error in the primary judge's conclusion that Valve was carrying on business in Australia. Not only did Valve engage in transactions with a large number of Australian consumers, it owned servers in Australia upon which content was 'deposited' when requested by its Australian customers. There was a series or a repetition of acts in Australia that formed part of the conduct of Valve's business.

The Full Court did not consider the penalty of $3 million to be manifestly excessive and found no error in relation to the other relief that had been ordered by the primary judge.

Employment and Industrial Relations NPA

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

(11 October 2017, North, Tracey, Flick, Jagot and Bromberg JJ)

As part of its four yearly review of modern awards as prescribed by s 156 of the Fair Work Act 2009 ('the Act'), the Fair Work Commission ('FWC') made determinations to vary multiple awards by reducing the Sunday and holiday penalty rates and other employee entitlements from 1 July 2017. The FWC considered that the penalty rates, as they then were, did not achieve the modern awards objective set out in s 134(1) of the Act, as they did not provide a fair and relevant minimum safety net.

Two unions, the Shop, Distributive and Allied Employees Association and United Voice ('the applicants'), sought judicial review of the FWC's determinations in this Court, submitting that the FWC lacked power under s 156 of the Act to make a determination to vary the award without having first satisfied itself that there had been a material change in circumstances since the previous review. The Full Court rejected this ground, finding that the FWC's power is not conditional upon it being satisfied that a material change has occurred.

The applicants also argued that the FWC misunderstood the nature of the inquiry required under s 134 of the Act, ultimately misconstruing 'relevant' in the phrase 'fair and relevant minimum safety net' as meaning that the award must be suited to contemporary circumstances, instead of by reference to only the factors at s 134(1)(a)-(h), which the applicants contended were exhaustive. The Full Court considered the phrase 'fair and relevant' to be a composite phrase, and held that while those matters in s 134(1)(a)-(h) inform the evaluation of what is a 'fair and relevant minimum safety net of terms and conditions', the FWC is not confined to consideration of those matters only.

In reaching its decision, the Full Court reiterated that its task is limited to reviewing the FWC's decision-making processes for jurisdictional error, and does not extend to assessing the correctness or the merits of the FWC's conclusions.

Having concluded that the FWC's decision, read as a whole, does not disclose any jurisdictional error, the Full Court ordered that each of the applications be dismissed.

Federal Crime and Related NPA

SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609

(30 April 2018, Bromwich J)

In February 2018, four search warrants were issued for execution at addresses in Melbourne and in the Australian Capital Territory in the course of an Australian Federal Police investigation targeted at SMEC Holdings Pty Ltd ('SMEC'). SMEC and several of its employees or officers brought four proceedings seeking judicial review, challenging the issue of the search warrants, their validity on their face and their execution. Interlocutory applications for discovery were also filed. While the parties were able to reach a consent position in relation to discovery pertaining to the execution of the search warrants, the Commissioner continued to oppose orders for discovery in relation to the material before the officers issuing the search warrants.

The central question was whether the applicants had established a sufficient basis for the Court to exercise its discretion to order the Commissioner to discover the material that was before the issuing officers. Among other assertions, the applicants argued that the issuing officers could not have been satisfied, on the basis of the information before them, that there were reasonable grounds to suspect that items described in the warrant, and located at the premises, would afford evidence of the offences. The applicants also claimed that the warrants were invalid, in circumstances where the applicants asserted they did not commit the offences specified in the warrants.

Bromwich J observed that, under s 3E of the Crimes Act 1914, an application for the issue of a search warrant only has to meet a 'low threshold requirement' and so it is difficult to establish that a search warrant has been invalidly issued, by reason of insufficient material before the issuing officer.

Bromwich J further noted that obtaining and executing a search warrant does not constitute any allegation, at that stage, that offences have been committed. It is clear, on the face of each of the four search warrants, that they were obtained on the grounds of no more than a suspicion by the warrant applicant that offences had occurred. Accordingly, claiming one's innocence is not of significant value. Such a claim cannot establish that the suspicion is unreasonably held, nor can it be a sound basis for inferring a lack of sufficient grounds for the issue of a search warrant.

Orders for discovery in relation to the execution of the search warrants were made by consent. The interlocutory applications for discovery were otherwise dismissed.

Intellectual Property NPA | Copyright Sub-Area

Career Step, LLC v TalentMed Pty Ltd (No 2) [2018] FCA 132

(28 February 2018, Robertson J)

Career Step, a company based in the United States, brought claims against TalentMed, an Australian company, for copyright infringement under the Copyright Act 1968 ('the Act'). Career Step provided an online educational course for those training to be medical transcriptionists. Career Step claimed that TalentMed copied portions of its course, provided under licence, to develop its own materials to offer a competing course to students.

In response, TalentMed and its two directors (together 'the respondents') asserted that Career Step had failed to establish subsistence or ownership of copyright in the work relied upon. The respondents further submitted that TalentMed had not infringed copyright in any alleged work, and neither director was accessorially liable.

Robertson J concluded that TalentMed's first version of its course 'took a substantial part of Career Step's copyright in the work' and that such copyings were not generic, although this was not found in relation to TalentMed's second iteration. It was also accepted that the directors authorised the copying.

Robertson J rejected the respondents' contention that Career Step had failed to evidence the pleaded copyright work, which was found to be the course content, including text containing information, case studies, graphs, diagrams, quizzes and exams, developed by employees and contractors of Career Step operating together. Robertson J accepted Career Step's submission that the course content constituted an original literary work, and more specifically, a work of joint ownership in accordance with the definition in s 10 of the Act. Robertson J was not satisfied that a work consisting of modules could not be a single work. Robertson J found that it was not necessary for each of the writers to contribute to each of the modules before a claim to joint ownership could be established. It was sufficient that the authors, as members of the group constituted for a common purpose, had been identified.

Robertson J also found that ownership lay with Career Step. This was because, by virtue of s 35(6) of the Act, Career Step as employer became the owner of copyright in the work product of the employees, and by s 196 of the Act, became the owner of copyright in the work product of the contractors by virtue of assignments. Declarations reflecting the respondents' infringement were made.

Intellectual Property NPA | Patents and Associated Statutes Sub-Area

Warner-Lambert Company LLC v Apotex Pty Limited (No 2) [2018] FCAFC 26

(23 February 2018, Jagot, Yates and Burley JJ)

Apotex challenged, on grounds of insufficiency and false suggestion, the validity of Pfizer's patent for a new therapeutic use of Lyrica (pregabalin) in pain therapy. The primary judge found the patent was sufficient and that a false suggestion was not material to its grant. The primary judge also found threatened infringement by Apotex.

The Full Court found no error in the primary judge's conclusions in relation to sufficiency. The Full Court accepted that the invention was a broad one directed to a new therapeutic use, not more specific matters such as dosage. The character of the invention was important when considering the description that will be sufficient. The relevant question was whether the specification described the invention fully, not what else was necessary for regulatory approval. There was a difference between whether a person skilled in the art could perform the invention based on the description in the specification and whether a clinician would choose to do so.

The primary judge did not agree that the description of the invention left a person skilled in the art with too much work to do, reasoning that if the steps required to be taken to work the invention were readily apparent and routine, then the test for sufficiency would be satisfied. The Full Court saw no error in this approach, nor in the finding of fact that the work required in the present case was routine for the person skilled in the art.

The Full Court found it was plainly open to the primary judge to conclude that the false suggestion was not a material factor that led to the grant of the patent. The Full Court found that the relevant claims would not lack fair basis even if the reference to testing that included the false suggestion had been omitted.

The Full Court also agreed with the primary judge that there was no reason to read down the definition of 'exploit' to found any territorial limitation. The relevant act of infringement was not the use of the method outside the patent area but the exploitation (by importation and sale) in Australia of a product made using the patented method. Thus a Swiss-style claim could be infringed by a threat to import and supply medicaments made outside of the patent area by a third party.

Intellectual Property NPA | Trade Marks Sub-Area

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93

(22 June 2018, Allsop CJ, Perram and Markovic JJ)

Since 2007, Moroccanoil has produced and distributed 'high-end' hair and skin care products containing argan oil from Morocco. Moroccanoil sought to register this word as a trade mark in relation to hair care products in 2011. In the same year, Aldi became aware that argan oil products were 'on-trend' and decided to produce their own range of argan oil hair care products under the brand 'Protane Naturals'. Aldi opposed the registration of the Moroccanoil trade mark and Moroccanoil claimed that the manner in which Aldi sold its argan oil products constituted misleading or deceptive conduct.

The primary judge found that the packaging of Aldi's products misleadingly conveyed that they were substantially comprised of natural ingredients and that their claimed benefits resulted from argan oil. The primary judge also found that the way in which the word 'Moroccanoil' had been used by Moroccanoil made it capable of distinguishing Moroccanoil's goods. The primary judge found that the trade mark could therefore proceed to registration.

The Full Court unanimously allowed the trade mark appeal, finding that the wordmark 'Moroccanoil' really just meant 'oil from Morocco' and was not inherently adapted to distinguish, nor capable of distinguishing by reason of use, Moroccanoil's products from those of other traders selling argan oil based hair care products.

The Full Court was also unanimous in finding that the word 'Naturals' on the packaging of the Aldi products did not convey to the ordinary reasonable consumer that the products were comprised of substantially natural ingredients. The primary judge fell into error by asking the wrong question, namely whether the ingredients in the products could be described as 'natural'.

In relation to the claimed benefits of the Aldi products, Perram J did not consider the labelling to suggest that the claimed benefits were derived from the presence of argan oil, but found this difference of opinion did not bespeak error for the purposes of appellate review. Allsop CJ and Markovic J both agreed with the primary judge.

Allsop CJ and Perram J also made some important observations about the nature of appellate review. In particular, they criticised a test of 'plainly and obviously wrong' as lacking the necessary nuance and setting the standard of appellate review higher than it should be.

Native Title NPA

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36

(16 March 2018, Reeves, Jagot and White JJ)

These appeals concern competing and entirely overlapping native title claims over the same claim area, known as Lake Torrens. Native title had been found to exist in favour of each of the appellants, the Kokatha People, the Adnyamathanha People and the Barngarla People, over separate areas of land surrounding Lake Torrens. The Full Court by majority held that all three appeals should be dismissed.

All of the native title applicants were unsuccessful before the primary judge. The primary judge found that the claimed rights and interests of the Kokatha People were contemporary in origin. The primary judge also found that neither the Adnyamathanha People nor the Barngarla People were able to establish a continual substantially uninterrupted connection with the claim area, in accordance with the traditional laws and customs held with respect to the area at sovereignty.

Reeves J found that the deficiency in the appeal by the Kokatha People was that their lay evidence did not take the Kokatha People's connection to Lake Torrens anywhere near sovereignty. Reeves J rejected submissions that the primary judge erred in his findings, including in relation to their rights and interests in the claim area, the significant objects shown in an evidence session and ethnographic surveys. Reeves J found that 'nothing has been advanced … to show why his Honour was wrong'.

Reeves J also rejected the appeal by the Adnyamathanha People. Reeves J found that the primary judge did not misapply the test for connection under the Native Title Act 1993, finding that 'occupation' was not mistakenly used in the Western sense. Reeves J did not accept that the primary judge erred by misusing the effect of the previous three consent determinations of the area around Lake Torrens. Reeves J also dismissed the appeal by the Barngarla People, finding that many grounds were confined to challenging findings the primary judge made, which were to a substantial degree based upon the witnesses' credibility.

White J agreed with the reasons given by Reeves J. White J emphasised that the Full Court should 'recognise the advantages of the primary judge arising … from his Honour having seen and heard the evidence given'.

In a dissenting judgment, Jagot J found the appeals should have been allowed. In considering the primary judge's treatment of the prior determinations of native title, Jagot J noted 'the Kokatha determination did not establish … that the Adnyamathanha and the Barngarla Peoples did not have rights and interests under their traditional laws and customs by which they had a connection with the Kokatha determination area pre-sovereignty or at any time thereafter until the date of the determination itself'. Jagot J also accepted that the primary judge erred in consideration of some evidence, so would have allowed the Kokatha appeal.

An application for special leave to appeal is currently pending in the High Court of Australia.

Other Federal Jurisdiction NPA

Rush v Nationwide News Pty Limited (No 2) [2018] FCA 550

(20 August 2018, Wigney J)

This matter concerns defamation claims brought by Mr Rush against Nationwide News Pty Ltd and its journalist, Mr Moran (together 'the respondents'). During the course of proceedings, the respondents filed two interlocutory applications, both of which were opposed by Mr Rush. Wigney J dismissed both applications.

In the first interlocutory application the respondents sought leave to file a further amended defence, which proposed two 'substantive and substantial' amendments to the current defence. The first amendment proposed to reinsert parts of the qualified privilege defence, previously struck out by Wigney J in an earlier judgment. The respondents submitted that the proposed paragraphs were 'directly relevant background context', and material to the mitigation of damages, rather than as particulars of the qualified privilege defence, in accordance with the principles outlined in Burstein's Case. The second amendment also proposed to reinsert paragraphs previously struck out as particulars of the pleaded qualified privilege defence. Wigney J found that the paragraphs that the respondents sought to be reintroduced into their defence did not fall within the principles in Burstein's Case. Rather, the paragraphs comprised little more than hearsay statements about allegations that had been made about Mr Rush, or rumour or innuendo, or facts about this that did not bear at all on Mr Rush's reputation. In relation to the second proposed amendment, Wigney J noted that he had already found, in an earlier judgment, those paragraphs to be irrelevant to their defence of qualified privilege. Finally, Wigney J noted that the respondents had not yet offered a satisfactory reason for their delay in seeking leave to amend.

In the second interlocutory application, the respondents sought leave to file a cross-claim out of time, naming the Sydney Theatre Company ('the STC') as a cross-respondent and alleging that the STC also defamed Mr Rush. Wigney J considered that the proposed cross-claim against a source, while novel, was 'weak and at best highly tenuous'. In addition, granting leave to file the cross-claim would mean unacceptable delays. For these reasons, Wigney J concluded that both interlocutory applications ought to be refused.

Taxation NPA

Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154

(25 September 2017, Middleton, Gilmour and Jagot JJ)

The liquidators of various companies formerly controlled by the Binetter family commenced proceedings against Nudie entities and other companies claiming equitable compensation effectively equivalent to the tax liabilities of the companies in liquidation. The Nudie entities were granted leave to issue a subpoena to the Commissioner of Taxation, which required the production of 'protected information' as defined in the Taxation Administration Act 1953.

Protected information is not required to be disclosed by the Commissioner of Taxation unless disclosure of it is 'necessary for the purpose of carrying into effect the provisions of a taxation law'. The primary judge found that disclosure of the protected information was necessary in this case because the real purpose of the liquidator proceedings was to recover unpaid tax. The disclosure would be conducive to the recovery of the correct or true amount of tax and would be in the interests of justice.

The Full Court disagreed, finding that the disclosure required by the subpoena could not be said to be 'necessary for the purpose of carrying into effect the provisions of a taxation law' merely because the Commissioner of Taxation was the only external creditor of the companies in liquidation and compensation sought by the liquidators was equivalent to the taxation liabilities which the companies in liquidation owed to the Commissioner.

The Full Court accepted that the issue was to be resolved as one of substance over form. The Full Court also accepted that the Commissioner of Taxation was attempting to secure revenue and was acting in the administration of a taxation law. However, the Full Court ultimately found that the purpose of the disclosure was not to give effect to a provision of a taxation law. The connection between the disclosure and the carrying into effect of a provision of a taxation law was too tenuous and remote. The Full Court noted that the required exercise was evaluative, not discretionary and was not informed by considerations of fairness or justice. The Full Court concluded that the subpoena issued to the Commissioner of Taxation should be set aside.