Special Leave Applications to the High Court - 2022 Judgments
23 Dec 2022
: Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591
O'Bryan J
PRACTICE AND PROCEDURE - application to recuse on the grounds of actual bias and apprehended bias - rulings made during first case management hearing - application dismissed
Status of Appeal to High Court -
13 April 2023: HCA - Special leave application dismissed [2023] HCASL 41
22 Dec 2022
: Pearson v Minister for Home Affairs [2022] FCAFC 203
Allsop CJ, Rangiah and Sarah C Derrington JJ
(
408 ALR 467 ; 295 FCR 177 ; 180 ALD 25
)
MIGRATION - application for review of decision of Administrative Appeals Tribunal to affirm decision of delegate of Minister for Home Affairs to mandatorily cancel visa on character grounds - where invitation did not crystallise the time period to make representations for revocation - where representations nevertheless made within 28 days and were considered - whether invitation a nullity - whether Minister's failure to comply with condition precedent to exercise of power…
Status of Appeal to High Court -
11 August 2023: HCA - Special leave application refused with costs [2023] HCATrans 105
21 Dec 2022
: Quach v MLC Limited [2022] FCAFC 202
Collier, Perry and Thomas JJ
INSURANCE - appeal from decision of a single Judge of the Federal Court of Australia - where appellant submits the respondent had breached s 13 of the Insurance Contracts Act 1984 (Cth) - where appellant made a claim for total and permanent disability caused by injury or sickness and claims he is unable to practise in his profession - where appellant had not provided insurer with any medical evidence supporting the claim and had not complied with policy terms - where…
Status of Appeal to High Court -
20 April 2023: HCA - Special leave application dismissed [2023] HCASL 60
15 Dec 2022
: GBY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1517
Markovic J
MIGRATION - application for an extension of time to appeal from orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) - where the first respondent consents to the extension of time - application granted ; MIGRATION - appeal from orders made by the Federal Circuit Court dismissing an application for judicial review of a decision of the second respondent (Tribunal) - whether appellant denied procedural fairness - whether…
Status of Appeal to High Court -
13 April 2023: HCA - Special leave application dismissed [2023] HCASL 51
13 Dec 2022
: Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 197
Logan, O'Callaghan and Banks-smith JJ
(
295 FCR 429
)
MIGRATION - where primary judge refused application for judicial review in original jurisdiction in relation to Minister's non-revocation decision under s 501C(4) of the Migration Act 1958 (Cth) - where appellant determined to not pass character test on the ground of being "sentenced to term of imprisonment for 12 months or more" under s 501(7)(c) on basis of detention in Youth Justice Centre while a minor - consideration of detention ordered under Children, Youth and…
Status of Appeal to High Court -
11 August 2023: HCA - Special leave application refused with costs [2023] HCATrans 106
13 Dec 2022
: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2022] FCAFC 199
Mortimer, Banks-smith and O'Sullivan JJ
(
292 FCR 595
)
MIGRATION - non-revocation of visa cancellation pursuant to s 501CA of the Migration Act 1958 (Cth) - whether primary judge erred in finding that Minister did not consider representations personally - no error by primary judge - appeal dismissed MIGRATION - non-revocation of visa cancellation pursuant to s 501CA of the Migration Act 1958 (Cth) - whether primary judge erred in finding that Minister acted unlawfully by relying on a summary of representations prepared by his…
Status of Appeal to High Court -
11 August 2023: HCA - Special leave application referred to a Full Court [2023] HCATrans 107
9 Dec 2022
: CVT19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1482
Stewart J
MIGRATION - protection visa - appeal from Federal Circuit Court's dismissal of review of Immigration Assessment Authority's decision to affirm delegate's decision not to grant protection visa - application for leave to file amended notice of appeal - where proposed new grounds of appeal lack merit - application for leave and appeal dismissed
Status of Appeal to High Court -
18 May 2023: HCA - Special leave application dismissed with costs [2023] HCASL 83
8 Dec 2022
: Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194
Markovic, Cheeseman and Hespe JJ
MIGRATION - appeal from decision of the Federal Court of Australia - where primary judge dismissed application for judicial review of Administrative Appeals Tribunal decision not to revoke visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) - whether the primary judge erred in failing to find that Tribunal erred in failing to consider the extent of the impediments that the appellant's health would cause him if returned to India - whether primary judge erred in …
Status of Appeal to High Court -
20 April 2023: HCA - Application dismissed [2023] HCASL 64
5 Dec 2022
: Luck v Secretary of Services Australia [2022] FCAFC 195
Farrell, Sarah C Derrington and Raper JJ
(
406 ALR 567
)
BANKRUPTCY - Effect of bankruptcy on proceedings -Commencement of appeal by bankrupt before sequestration - Stay of proceedings until election by trustee - Whether proceedings deemed abandoned - Proceedings for judicial review of decision by Administrative Appeals Tribunal relating to documents sought under Freedom of Information Act 1982 (Cth) - Whether proceedings to vindicate breach of human rights - Whether proceedings in respect of "any personal injury or wrong" within…
Status of Appeal to High Court -
20 April 2023: HCA - Special leave application dismissed [2023] HCASL 62
29 Nov 2022
: Wan v BT Funds Management Limited [2022] FCAFC 189
Markovic, McElwaine and McEvoy JJ
SUPERANNUATION - whether the primary judge and the Australian Financial Complaints Authority erred in accepting that the decision of the trustee of a superannuation fund to distribute a member's superannuation death benefit to his estate rather than the appellant was fair and reasonable - whether the appellant was a "dependant" of the deceased, being either a spouse or in an interdependency relationship with the deceased at the time of his death, for the purposes of s 10 and …
Status of Appeal to High Court -
11 May 2023: HCA - Special leave application dismissed [2023] HCASL 76
22 Nov 2022
: AWO21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1387
Collier J
APPEAL - appeal from a decision of the Federal Circuit Court dismissing the appellant's application for judicial review - appellant sought judicial review of a decision of the Administrative Appeals Tribunal affirming the decision of the first respondent not to grant a protection visa - whereas the appellant contends he was not afforded procedural fairness and failure of the primary Judge to deal with all submissions - appellant was afforded procedural fairness- primary…
Status of Appeal to High Court -
20 April 2023: HCA - Special leave application dismissed [2023] HCASL 61
15 Nov 2022
: Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 183
Thawley, Halley and O'Sullivan JJ
(
295 FCR 254
)
MIGRATION - appeal from decision of primary judge to refuse application for review of decision of the Administrative Appeals Tribunal - where application to the Tribunal was not made in compliance with s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) - whether application contained a "statement of the reasons for the application" - whether failure to include statement invalidated application - appeal dismissed
Status of Appeal to High Court -
15 September 2023: HCA - Special leave application granted [2023] HCATrans 126
11 Nov 2022
: Dennis v Commonwealth Bank of Australia [2022] FCA 1338
Collier J
APPEAL - appeal from a decision of the Federal Circuit Court granting summary judgment against the appellant - whereas the appellant contended that the respondent breached provisions of the National Consumer Credit Protection Act 2009 (Cth) (NCCPA) and Code of Banking Practice 2013 by declining to provide her with additional finance - appellant alleged bias on the part of the primary Judge only after reasons delivered - no bias on the part of the primary Judge demonstrated - …
Status of Appeal to High Court -
9 March 2023: HCA - Special leave application dismissed [2023] HCASL 13
8 Nov 2022
: Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179
Banks-smith, Colvin and O'Sullivan JJ
CONSUMER LAW - where on remitter primary judge found that first and second respondents were liable to pay damages arising from loss under the Australian Consumer Law - where primary judge held that the remitter did not disturb first instance findings as to the third respondent and therefore did not order damages against him - where appellant alleges that the primary judge erred in construing the nature and terms of the remittal - where the primary judge properly construed…
Status of Appeal to High Court -
13 April 2023: HCA - Special leave application dismissed with costs [2023] HCASL 57
4 Nov 2022
: Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1316
Raper J
MIGRATION - application for Student (Temporary) (Class TU) visa - review of the Administrative Appeal Tribunal decision to affirm the decision of a delegate of the Minister to refuse to grant a student visa - whether the Tribunal denied the appellant procedural fairness and/or was legally unreasonable in failing to adjourn the Tribunal proceedings where the appellant made no request for an adjournment - appeal dismissed
Status of Appeal to High Court -
9 March 2023: HCA - Special leave application dismissed [2023] HCASL 14
2 Nov 2022
: Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177
Collier, Farrell and Halley JJ
MIGRATION - where the primary judge allowed an application for judicial review of a decision of the Administrative Appeals Tribunal - where the AAT affirmed the decision of a delegate of the Minister not to revoke a decision to cancel the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth) - where the primary judge set aside the AAT's decision on the basis that the Tribunal made a jurisdictional error because it had failed to give proper, genuine and realistic…
Status of Appeal to High Court -
19 May 2023: HCA - Special leave application refused with costs [2023] HCATrans 67
28 Oct 2022
: Tucker v Broderick [2022] FCAFC 174
Bromberg, Bromwich and McEvoy JJ
INDUSTRIAL RELATIONS - appeal from orders summarily dismissing proceeding pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) - primary judge determined that claims in the Federal Court were plainly founded on an issue already pleaded and resolved in the Supreme Court of Victoria and that the causes of action pleaded had merged in the judgment of the Supreme Court - cause of action estoppel - proceeding determined to be an abuse of process which sought to vex the…
Status of Appeal to High Court -
16 March 2023: HCA - Special leave application dismissed [2023] HCASL 29
27 Oct 2022
: DCI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1284
O'Callaghan J
MIGRATION - appeal from decision refusing judicial review of Administrative Appeal Tribunal decision - appeal dismissed
Status of Appeal to High Court -
13 April 2023: HCA - Special leave application dismissed with costs [2023] HCASL 55
10 Oct 2022
: Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170
Jagot, O'Bryan and Cheeseman JJ
(
295 FCR 106
)
CORPORATIONS -- appeal against findings of misleading and deceptive conduct arising from promotion of investment products -- where appellants did not appear at first instance -- no error in primary judge's findings of contraventions or assessment of witnesses -- judge's discretionary assessment of penalty open although higher than penalty suggested by ASIC -- broad injunction against publication of material set aside -- appeal otherwise dismissed
Status of Appeal to High Court -
21 April 2023: HCA - Special leave application refused with costs [2023] HCATrans 51
29 Sep 2022
: Parry v University of South Australia [2022] FCAFC 168
Banks-smith, O'Sullivan, Feutrill JJ
EMPLOYMENT LAW - appeal from orders dismissing an application alleging contravention of s 340 of the Fair Work Act 2009 (Cth) (FWA) - where primary judge found that the respondent terminated the applicant's employment for reasons that did not include his possession or exercise of a workplace right to protect his health and safety in the workplace - where primary judge found that the respondent terminated the applicant's employment because of his failure to perform his duties …
Status of Appeal to High Court -
15 February 2023: HCA - Special leave application dismissed [2023] HCASL 9
16 Sep 2022
: State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158
Besanko, Middleton and Rangiah JJ
(
405 ALR 1 ; 294 FCR 171
)
COMMUNICATIONS LAW - Telecommunications Act 1997 (Cth) Sch 3 cl 7 - meaning of "maintenance" as part of power to "maintain a facility" - whether maintenance includes the installation of a new fibre optic cable in a conduit or duct owned by a third party with whom access agreement entered - where consent of landowner required absent authorisation to install or maintain facility under the Act - held: installation of proposed facility not within power to maintain - appeal…
Status of Appeal to High Court -
16 June 2023: HCA - Special leave application refused with costs [2023] HCATrans 86
15 Sep 2022
: Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159
Jagot, O'Bryan and Cheeseman JJ
(
405 ALR 292 ; 163 ACSR 265 ; 294 FCR 375
)
APPEAL AND NEW TRIAL -- appeal against findings of contraventions of Corporations Act and ASIC Act in proceeding for permanent injunctions -- where ASIC conducted case on basis that no findings of contraventions necessary for injunctions under s 1324 of Corporations Act -- where appellant denied procedural fairness -- exceptional case in which proceeding must be remitted for hearing in different basis from original case -- where other appeal grounds alleging incompetence of…
Status of Appeal to High Court -
21 April 2023: HCA - Special leave application refused [2023] HCATrans 50
2 Sep 2022
: Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149
Allsop CJ, Rares and Derrington JJ
(
404 ALR 386 ; 163 ACSR 119 ; 294 FCR 524
)
CONTRACTS - contract formation - nature of agency relationship - extent of agent's authority - imputation of agent's knowledge - incorporation of terms - relevance of so-called ticket cases - offer and acceptance - whether there was reasonable notice of terms of contract of passage including the exclusive jurisdiction clause - whether exclusive jurisdiction clause was onerous or unusual CONSUMER LAW - whether exclusive jurisdiction clause or class action waiver clause are…
Status of Appeal to High Court -
17 March 2023: HCA - Special leave application granted [2023] HCATrans 33
26 Aug 2022
: Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142
Mortimer, Bromwich and Thomas JJ
(
294 FCR 270
)
MIGRATION - Migration Act 1958 (Cth) s 501BA - exercise of discretion to override decision of Administrative Appeals Tribunal to revoke visa cancellation - whether discretion under s 501BA miscarried or was not properly exercised - whether decision-maker exceeded the boundaries for determination of the "national interest" - whether decision was legally unreasonable - whether s 501BA(3) is invalid - appeal dismissed
Status of Appeal to High Court -
17 March 2023: HCA - Special leave application refused with costs [2023] HCATrans 35
9 Aug 2022
: HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133
Yates, Abraham and McElwaine JJ
(
294 FCR 13
)
MIGRATION - appeal from the decision of the Federal Court of Australia - where the Federal Court dismissed the application for review of the decision of the Administrative Appeals Tribunal - where the Administrative Appeals Tribunal affirmed the delegate's decision not to revoke cancellation of visa - whether representation was clearly articulated or clearly emerged from the materials - whether Administrative Appeals Tribunal's misunderstanding of Australia's unenacted…
Status of Appeal to High Court -
8 December 2022: HCA - Special leave application dismissed [2022] HCASL 211
5 Aug 2022
: Cruickshank v Australian Securities and Investments Commission [2022] FCAFC 128
Allsop, Jackson and Anderson JJ
(
403 ALR 67 ; 163 ACSR 226 ; 292 FCR 627
)
CORPORATIONS - appeal from the decision of the liability judgment and the orders and declarations made in the penalty judgment - continuous disclosure obligations pursuant to s 674(2A) of Corporations Act 2001 (Cth) - whether information not disclosed was material to relevant investors pursuant to s 677 - whether a reasonable person would expect the information, were it generally available, to have a material effect on the price or value of the Company's shares for the…
Status of Appeal to High Court -
17 November 2022: HCA - Special leave application dismissed with costs [2022] HCASL 201
4 Aug 2022
: Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144
Rares, Anderson and Hespe JJ
(
294 FCR 63
)
CONSTITUTIONAL LAW - s 51(xix) of the Constitution - aliens power - naturalisation and renunciation of citizenship - where British subject born in United Kingdom migrated to Australia and enrolled to vote under s 93(1)(b)(ii) of Commonwealth Electoral Act 1918 (Cth) before 26 January 1984 - where person naturalised as Australian citizen in 1988 renounced citizenship in 1995 and granted visa - where ex-citizen failed character test and Minister cancelled visa under s 501 of…
Status of Appeal to High Court -
8 December 2022: HCA - Special leave application dismissed [2022] HCASL 210
19 Jul 2022
: Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd (No 2) [2022] FCAFC 121
Greenwood, Cheeseman and McElwaine JJ
COSTS - determination of costs on appeal and first instance proceeding - application for an order that the respondents pay the appellant's costs on an indemnity basis - where offer of compromise - where no reason to depart from guiding principle for the award of indemnity costs- where not unreasonable to not accept offer of compromise
Status of Appeal to High Court -
17 February 2023: HCA - Special leave application granted [2023] HCATrans 13
15 Jul 2022
: Mackie v Minister for Home Affairs [2022] FCAFC 120
Rares, Mortimer and O'Sullivan JJ
MIGRATION - two appeals heard together - decisions to cancel appellants' visas under s 501(3) of Migration Act 1958 (Cth) - where Minister decided cancellation of the visas was in the national interest - appellants found to be senior members of an "outlaw motorcycle gang" - where Minister made findings about opposition to "anti-biker" legislation and appellants' "willingness to disobey Australian laws" in the future - whether primary judge correct to find Minister's…
Status of Appeal to High Court -
10 November 2022: HCA - Special leave application dismissed with costs [2022] HCASL 191
12 Jul 2022
: AVI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 800
Farrell J
MIGRATION - appeal from the Federal Circuit Court of Australia - where FCCA Judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to refuse the appellant a protection visa - failure to disclose a notification under s 438 of the Migration Act 1958 (Cth) (s 438 certificate) - whether failure to disclose deprived appellant of the possibility of a successful outcome so as to…
Status of Appeal to High Court -
13 October 2022: HCA - Special leave application dismissed [2022] HCASL 170
6 Jul 2022
: AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114
Kenny, O'Callaghan and Thawley JJ
(
294 FCR 80
)
MIGRATION - appeal: whether Tribunal failed to comply with cl 14(1)(a) of Direction 65 by failing to consider for itself "international non-refoulement obligations" - appeal dismissed - cross-appeal: whether second judicial review application precluded by reason of res judicata, Anshun estoppel, abuse of process - cross appeal dismissed
Status of Appeal to High Court -
17 February 2023: HCA - Special leave application refused with costs [2023] HCATrans 17
6 Jul 2022
: Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2022] FCAFC 112
Greenwood, Cheeseman and McElwaine JJ
(
292 FCR 512 ; 402 ALR 576 ; 167 IPR 411
)
COPYRIGHT - appeal from decision of the primary judge dismissing claims of copyright infringement, misuse of confidential information, and various breaches of contract - where primary judge upheld the claims in relation to only one of the respondents - where appellant contends that its claims should have been upheld by the primary judge against all respondents ; COPYRIGHT - whether the primary judge erred in dismissing the copyright infringement claims against the…
Status of Appeal to High Court -
17 February 2023: HCA - Special Leave application granted [2023] HCATrans 13
30 Jun 2022
: Yu v ACT Education Directorate [2022] FCAFC 110
Thomas, Sarah C Derrington and Halley JJ
INDUSTRIAL LAW - adverse action - whether employee exercising a workplace right under s 343(1)(a) of the Fair Work Act 2009 (Cth) - where employee claimed to have been exercising her right to take reasonable care of her own health and safety under s 44 of the Work Health and Safety Act 2011 (ACT) when refusing the directions of her employer to prepare a Professional Pathways Plan, to teach under observation and to attend certain meetings INDUSTRIAL LAW - Enterprise Agreement …
Status of Appeal to High Court -
8 December 2022: HCA - Special leave application dismissed [2022] HCASL 205
27 Jun 2022
: Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2022] FCAFC 108
Besanko, Lee and O'Bryan JJ
(
162 ACSR 266 ; 293 FCR 330 ; 410 ALR 390
)
CONSUMER LAW - consumer credit - alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) (Act) and the National Credit Code in Sch 1 of the Act - prohibition on engaging in credit activity without an Australian credit licence - where second respondent provided loan application services to applicants for credit and first respondent provided loans to successful applicants for credit - whether charges imposed by second respondent for "services" were…
Status of Appeal to High Court -
15 December 2022: HCA - Special leave application refused with costs [2022] HCATrans 224
14 Jun 2022
: Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 686
Downes J
MIGRATION - application for approval of nomination of person to a position in Australia refused by delegate - applicant sought review and was invited by Administrative Appeals Tribunal to provide further information - invitation made pursuant to s 359(2) Migration Act 1958 (Cth) - invitation transmitted to email address of migration agent who was the applicant's authorised recipient within meaning of s 379G Migration Act 1958 (Cth) - invitation deemed by s 379C(5) Migration…
Status of Appeal to High Court -
10 November 2022: HCA - Special leave application dismissed with costs [2022] HCASL 192
9 Jun 2022
: Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102
Bromwich, Lee and Thawley JJ
(
402 ALR 279 ; 294 FCR 101
)
CONTEMPT OF COURT - where Registrar appointed by primary judge to continue conduct of contempt charges originally brought by special purpose liquidator after settlement of principle claim - whether a denial of procedural fairness because of an asserted lack of opportunity to be heard - whether there was power to appoint the Registrar to continue the proceeding - whether rr 42.11 and 42.16 of the Federal Court Rules 2011 (Cth) set out an exhaustive list of procedures for…
Status of Appeal to High Court -
20 October 2022: HCA - Special leave application dismissed with costs [2022] HCASL 184
1 Jun 2022
: CHB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 635
Greenwood J
MIGRATION - consideration of the analytical method required to be adopted by the Immigration Assessment Authority ("IAA") when determining whether new information can be considered for the purposes of s 473DD of the Migration Act 1958 (Cth) (the "Act") when making a decision on a review of a fast track reviewable decision - consideration of the principles discussed by the majority at [6] [12] and the separate reasons of Edelman J at [23] and [24] in AUS17 v Minister for…
Status of Appeal to High Court -
13 October 2022: HCA - Special leave application dismissed with costs [2022] HCASL 181
1 Jun 2022
: CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634
Yates J
MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority - application for a protection visa - whether Authority acted unreasonably in failing to get new information - whether Authority failed to consider whether to get new information - appeal dismissed
Status of Appeal to High Court -
13 October 2022: HCA - Special leave application dismissed with costs [2022] HCASL 182
24 May 2022
: Bibawi v Australian Human Rights Commission [2022] FCA 607
Rangiah J
HUMAN RIGHTS - Application for summary dismissal of appeal against dismissal of application for judicial review of decision by Australian Human Rights Commission - where appellant's "complaint" did not satisfy requirements of s 46P(1A) of the Australian Human Rights Commission Act 1986 (Cth) PRACTICE AND PROCEDURE - Application for summary judgment - where appeal has no reasonable prospects of success - appeal dismissed
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed [2022] HCASL 151
24 May 2022
: Hurley v Collector of Customs [2022] FCAFC 92
Moshinsky, Banks-smith and Colvin JJ
(
176 ALD 317 ; 292 FCR 243
)
TAXATION - customs duty - where the Collector of Customs served a demand for payment on the applicant under s 35A of the Customs Act 1901 (Cth) - where the relevant goods (alcoholic beverages) were the subject of a periodic settlement permission under which the goods could be delivered into home consumption without being entered for that purpose - where the duty was not payable before or at the time when the goods were delivered into home consumption - where the duty was…
Status of Appeal to High Court -
13 October 2022: HCA - Special leave application dismissed with costs [2022] HCASL 175
20 May 2022
: AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 585
Cheeseman J
PRACTICE AND PROCEDURE - application for leave to rely upon proposed amended ground of appeal as set out in the appellant's outline of written submissions - where proposed amended ground of appeal opposed in part by the first respondent (Minister) - where proposed amended ground includes an argument not raised before the primary judge - where no explanation for failure to take the point in the Court below - where the Minister opposed leave being granted on the basis that the …
Status of Appeal to High Court -
13 October 2022: HCA - Special leave dismissed with costs [2022] HCASL 173
17 May 2022
: EEE16 v Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs [2022] FCA 629
Rares J
MIGRATION - application for constitutional writ relief - whether Immigration Assessment Authority failed to consider claim that visa applicant was political activist when claim not before it or delegate - whether Authority erred in making adverse credibility finding - whether Authority should have sought new information under ss 473DC and 473DD of Migration Act 1958 (Cth) - where Authority not asked to accept new information - where no exceptional circumstances existed -…
Status of Appeal to High Court -
15 December 2022: HCA - Special leave application dismissed [2022] HCASL 219
12 May 2022
: Saffari v Amazon.com Inc [2022] FCA 535
Cheeseman J
PRACTICE AND PROCEDURE - service - where the application for leave to appeal in respect of two interlocutory decisions of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) - where applicant is self-represented - where the first respondent (Amazon) is a foreign company based in the United States of America - where the second respondent, Jeffrey Bezos, one of 17 governors of Amazon, is outside the jurisdiction - where the applicant…
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed [2022] HCASL 149
5 May 2022
: CGN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 494
Anderson J
MIGRATION - appeal from an order made by the Federal Circuit Court of Australia dismissing the Appellant's application for judicial review of a decision of Administrative Appeals Tribunal - whether the Federal Circuit Court was correct to conclude that the decision of the Tribunal was not affected by jurisdictional error - where the decision exhibits no jurisdictional error - appeal dismissed
Status of Appeal to High Court -
8 September 2022: HCA - Special leave application dismissed [2022] HCASL 136
5 May 2022
: EXT20 v Minister for Home Affairs [2022] FCAFC 72
Mortimer, Wigney and Snaden JJ
(
291 FCR 55
)
MIGRATION - appeal - refusal to revoke mandatory cancellation of appellant's visa under s 501CA(4) of the Migration Act 1958 (Cth) - where appellant made representations about risk of harm if returned to country of nationality - representations made within the prescribed period but after receipt of a notice under s 501CA(3) that misrepresented the prescribed period - where Minister concluded that he was unable to make a finding about the appellant's claim to fear harm due to …
Status of Appeal to High Court -
15 December 2022: HCA - Special leave application refused with costs [2022] HCATrans 223
4 May 2022
: Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69
Yates, Moshinsky and Rofe JJ
(
166 IPR 436
)
PATENTS - alleged infringement by supply of products - s 117 of the Patents Act 1990 (Cth) - staple commercial product - whether essential oil derived from the shrub Kunzea ambigua was a staple commercial product - where the primary judge found that the oil was a staple commercial product - whether the primary judge erred in so finding - held: no error in primary judge's conclusion PATENTS - inventive step - method of treatment claims - where primary judge found that the…
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed with costs [2022] HCASL 162
4 May 2022
: Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71
Bromberg, Rangiah and Bromwich JJ
(
402 ALR 1 ; 315 IR 1 ; 292 FCR 34
)
INDUSTRIAL LAW - employer appeal - adverse action - decision of Qantas to outsource ground handling operations during COVID-19 pandemic - appeal from the decision of the primary judge finding that Qantas Airways Ltd contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) - construction of s 340(1)(b) of the FW Act - whether s 340(1)(b) requires a person to have presently existing workplace right - consideration of the reverse onus under s 360(1) of the FW Act -…
Status of Appeal to High Court -
18 November 2022: HCA - Special leave application granted [2022] HCATrans 205
29 Apr 2022
: DJL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 451
Anastassiou J
MIGRATION - appeal from Federal Circuit Court of Australia - application for protection visa - whether Administrative Appeals Tribunal erred by making findings not open to it - whether Tribunal fell into jurisdictional error by acting legally unreasonably or illogically by failing to take into account relevant parts of country information - whether Tribunal fell into jurisdictional error by acting unreasonably in making finding that appellant had fabricated his claim -…
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed with costs [2022] HCASL 167
29 Apr 2022
: Harvey v Minister for Primary Industry and Resources [2022] FCAFC 66
Jagot, Charlesworth and O'Bryan JJ
(
401 ALR 578 ; 291 FCR 263
)
NATIVE TITLE - where the first respondent intends to grant a mineral lease (ML 29881) to the third respondent under the Mineral Titles Act 2010 (NT) - where land subject to the proposed lease would be used for the construction of a "dredge spoil emplacement area" to deposit dredged material from a loading facility located on adjacent land subject to a mineral lease already held by the third respondent - where loading facility is used to load ore concentrate from the McArthur …
Status of Appeal to High Court -
16 December 2022: HCA - Special leave application granted [2022] HCATrans 229
29 Apr 2022
: Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68
Rares, Wigney and Lee JJ
(
400 ALR 56 ; 292 FCR 336
)
DEFAMATION - whether pleaded imputations conveyed by matter complained of - where matter complained of named applicant doctors and later made generalised defamatory assertions as to misconduct not specifically attributed to applicants - whether ordinary reasonable reader would understand imputations conveyed in respect of applicants HIGH COURT AND FEDERAL COURT - whether s 17(2) of the Royal Commissions Act 1923 (NSW) has application in a federal court - consideration of the …
Status of Appeal to High Court -
17 February 2023: HCA - Special leave application refused with costs [2023] HCATrans 14
22 Apr 2022
: BRL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 434
Lee J
MIGRATION - appeal from a decision of the primary judge to refuse to grant the appellant a protection visa - appellant citizen of India claiming fear of harm - where Tribunal made adverse credibility findings in respect of the appellant - appellant's claims found to be fabricated - no error identified by the primary judge - Delphic notice of appeal - no discernible error - appeal dismissed
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed [2022] HCASL 154
14 Apr 2022
: Nyoni v Bird [2022] FCAFC 61
Mortimer, Rofe and McElwaine JJ
(
177 ALD 21
)
ADMINISTRATIVE LAW - application for judicial review of a decision of the primary judge dismissing an application for review of a decision of the Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) - whether the primary judge erred in finding that the Court could not grant prerogative relief against itself applying Bird v Free (1994) 126 ALR 475 - whether the primary judge erred in concluding that a breach of the rules…
Status of Appeal to High Court -
13 April 2023: HCA - Special leave application dismissed [2023 HCASL 39]
13 Apr 2022
: Commissioner of Patents v Thaler [2022] FCAFC 62
Allsop CJ, Nicholas, Yates, Moshinsky and Burley JJ
(
166 IPR 215 ; 401 ALR 551 ; 289 FCR 45
)
PATENTS - artificial intelligence - where Patents Regulations 1991 (Cth) require name of the inventor to be provided in application under the Patent Cooperation Treaty - where patent application named DABUS, an artificial intelligence machine, as inventor - where parties agreed that the invention described in the patent application was the output of the process undertaken by DABUS - where Deputy Commissioner of Patents determined that patent application did not comply with…
Status of Appeal to High Court -
11 November 2022: HCA - Special leave application refused with costs [2022] HCATrans 199
13 Apr 2022
: KTC v David [2022] FCAFC 60
Wigney, Anastassiou and Jackson JJ
PRACTICE AND PROCEDURE - application for leave to appeal - whether decision of primary judge attended by sufficient doubt to warrant grant of leave - whether substantial injustice would result from a refusal of leave - where interlocutory orders have practical effect of finally determining the rights of a party to proceeding - whether claim involves speculation or conjecture, obviating any purported substantial injustice - leave to appeal granted PRACTICE AND PROCEDURE -…
Status of Appeal to High Court -
21 October 2022: HCA - Special leave application dismissed with costs [2022] HCATrans 183
11 Apr 2022
: BTQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 382
Kenny J
MIGRATION - appeal from the Federal Circuit Court - whether the Administrative Appeals Tribunal failed to consider a clearly articulated claim - appeal dismissed
Status of Appeal to High Court -
19 September 2022: HCA - Special leave application dismissed [2022] HCASL 146
8 Apr 2022
: SZROL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 378
Thawley J
MIGRATION - appeal from Federal Circuit Court of Australia decision dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate not to grant the applicant a protection visa - whether primary judge dealt adequately or at all with appeal grounds - inconsistencies in evidence - appeal dismissed
Status of Appeal to High Court -
18 August 2022: HCA - Special leave application dismissed [2022] HCASL 125
5 Apr 2022
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Jagot, Mortimer and Abraham JJ
(
290 FCR 149
)
MIGRATION - appeal from a decision of the Federal Court of Australia - where primary judge granted declaratory relief regarding the application of 198AD(2) to the respondent - where primary judge compelled Secretary of Department of Home Affairs to remove respondent as soon as reasonably practicable from Australia - where primary judge ordered detention of respondent occur at property of members of the public - whether orders were interlocutory in character - whether…
Status of Appeal to High Court -
11 November 2022: HCA - Special leave application granted on limited grounds [2022] HCATrans 196
30 Mar 2022
: AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 299
Snaden J
MIGRATION - applicant's visa cancelled on character grounds - applicant subsequently applied for protection visa - application for protection visa rejected by delegate of first respondent - application for review of delegate's decision before second respondent ("Tribunal") - Tribunal affirmed delegate's decision - application for judicial review of Tribunal decision before Federal Circuit Court of Australia ("FCCA") - application dismissed - appeal from FCCA judgment -…
Status of Appeal to High Court -
13 October 2022: HCA - Special leave application dismissed [2022] HCASL 169
29 Mar 2022
: Avant Insurance Limited v Darshn [2022] FCAFC 48
Jagot, Derrington and Colvin JJ
INSURANCE -- whether lawyers retained by insurer to act for insured had authority to give notice of facts that might give rise to claim on behalf of insured -- whether lawyers retained by insurer for insured did give notice of facts that might give rise to claim against insured to insurer -- whether insurer's reliance on insured not having given notice of facts that might give rise to claim against insured contravened insurer's duty of utmost good faith -- whether primary…
Status of Appeal to High Court -
18 November 2022: HCA - Special leave application refused with costs [2022] HCATrans 210
14 Mar 2022
: Campbell v Northern Territory of Australia [2022] FCAFC 37
Jagot, Bromwich and Abraham JJ
(
289 FCR 148
)
STATUTORY INTERPRETATION -- whether limitation on isolating detainee in cell under Youth Justice Regulations 2006 (NT) applied to detainee transferred to a prison under Youth Justice Act 2005 (NT) -- application of statutory limitations period to commence proceedings for acts or omissions of officials -- appeal dismissed PRACTICE AND PROCEDURE -- application for leave to file notice of contention -- whether appellant precluded from instituting appeal by virtue of releases in …
Status of Appeal to High Court -
21 October 2022: HCA - Special leave application dismissed with costs [2022] HCATrans 188
25 Feb 2022
: Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Katzmann, Sarah C Derrington and Banks-smith JJ
(
397 ALR 316 ; 157 ACSR 542 ; 288 FCR 10
)
MIGRATION - appeal from decision of primary judge dismissing application for judicial review of decision not to revoke mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) - whether Minister took into account an irrelevant consideration being unrecorded convictions as a juvenile - whether Minister failed to consider substantial or significant and clearly articulated claims - whether reasons fail to demonstrate an active intellectual process with…
Status of Appeal to High Court -
16 September 2022: HCA - Special leave application granted on condition [2022] HCATrans 160
23 Feb 2022
: McMillan v Warner (Trustee) [2022] FCAFC 20
Logan, Farrell and Halley JJ
BANKRUPTCY - appeal - where property was transferred to the appellant for $1 and the transferor subsequently became bankrupt - where 16 years had elapsed between the transfer and bankruptcy - where there was no temporal nexus between the creditors at the time of the transfer and the subsequent bankruptcy -where the primary judge rejected the transferor's evidence as to his purpose in making the transfer - whether the transferor's main purpose was to prevent the property…
Status of Appeal to High Court -
14 October 2022: HCA - Special leave application refused with costs [2022] HCATrans 170
21 Feb 2022
: Star Entertainment Group Limited v Chubb Insurance Australia Ltd [2022] FCAFC 16
Moshinsky, Derrington and Colvin JJ
(
158 ACSR 474 ; 400 ALR 25
)
INSURANCE - appeal from decision refusing application by insureds for declaratory relief - whether insurers obliged under insurance policy to indemnify for loss from business interruption caused by government orders directed to restricting spread of COVID-19 - where policy includes memorandum directed to extending indemnity to loss resulting from occurrence or discovery of notifiable disease at premises - where memorandum excludes cover for diseases listed in Biosecurity Act …
Status of Appeal to High Court -
14 October 2022: HCA - Special leave application refused with costs [2022] HCATrans 173
21 Feb 2022
: LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC 17
Moshinsky, Derrington and Colvin JJ
(
401 ALR 204 ; 290 FCR 435
)
INSURANCE - construction of policies - principles of construction - requirement to read policy "as a whole" - requirement to read policy provisions in context - giving effect to specific or important clauses which might otherwise be rendered redundant by a broad reading of other clauses - whether incongruence or incoherence as opposed to mere overlap INSURANCE - construction of policies - principles of construction - requirement to read policy from the position of an…
Status of Appeal to High Court -
14 October 2022: HCA - Special leave application refused [2022] HCATrans 172
18 Feb 2022
: CMC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 121
Rofe J
MIGRATION - appeal from judgment of the Federal Circuit Court of Australia - judicial review of a decision of the Administrative Appeals Tribunal affirming decision of the delegate not to grant a protection visa - whether Tribunal made findings without probative evidence - whether Tribunal took into account irrelevant matters - whether Tribunal failed to take into account probative evidence - findings regarding appellants' credibility - appeal dismissed
Status of Appeal to High Court -
18 August 2022: HCA - Special leave application dismissed with costs [2022] HCASL 132
14 Feb 2022
: Renton v Minister for Home Affairs [2022] FCAFC 11
Charlesworth, Stewart and Halley JJ
(
292 FCR 155
)
MIGRATION - mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) - decision not to revoke cancellation under s 501CA(4) - where the Minister made a finding that the appellant has psychological sexual issues relating to children - whether expert evidence was required - whether leave should be granted to raise new grounds - where new grounds are either without merit or do not allege jurisdictional error - appeal dismissed
Status of Appeal to High Court -
18 August 2022: HCA - Special leave application dismissed [2022] HCASL 126
7 Feb 2022
: BSF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 61
Greenwood J
MIGRATION - consideration of an application for leave to adduce fresh evidence on the appeal - consideration of an application for leave to amend a notice of appeal - consideration of the grounds of appeal as amended to the extent granted by leave
Status of Appeal to High Court -
18 August 2022: HCA - Special leave application dismissed [2022] HCASL 127
7 Feb 2022
: Facebook Inc v Australian Information Commissioner [2022] FCAFC 9
Allsop CJ, Perram, and Yates JJ
(
289 FCR 217
)
PRACTICE AND PROCEDURE - application for leave to appeal interlocutory decision dismissing application to set aside orders permitting service out of the jurisdiction - where originating application seeks relief under Privacy Act 1988 (Cth) ('Act') - where s 5B(3) of the Act requires 'Australian link' - whether Applicant carried on business in Australia - whether installation, operation and removal of cookies on Australian users' devices and management of the Facebook login…
Status of Appeal to High Court -
16 September 2022: HCA - Special leave application granted [2022] HCATrans 157
4 Feb 2022
: BBY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 68
Bromwich J
MIGRATION - appeal from Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) - whether primary judge erred in assessing grounds of review from a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the first respondent to refuse the appellant a Protection (subclass 866) visa - where appellant previously convicted of drug trafficking in Australia - whether Tribunal erred in not being…
Status of Appeal to High Court -
16 June 2022: HCA - Special leave application dismissed [2022] HCASL 115
25 Jan 2022
: Commissioner of Taxation v Shell Energy Holdings Australia Limited [2022] FCAFC 2
Allsop CJ, Davies and Thawley JJ
(
396 ALR 565 ; 288 FCR 193
)
TAXATION - where the respondent party to a joint venture agreement in relation to petroleum project - where joint venture participants held statutory titles which conferred authority to explore for petroleum - where respondent increased its proportional interest in statutory titles through purchase of additional proportional interest pursuant to an asset exchange agreement - whether the respondent is entitled to tax deduction under s 40-80 of the Income Tax Assessment Act…
Status of Appeal to High Court -
9 September 2022: HCA - Special leave application dismissed with costs [2022] HCATrans 151
