Special Leave Applications to the High Court - 2023 Judgments
22 Dec 2023
: Wilson v State of Victoria [2023] FCAFC 204
Logan, Perry and O'Sullivan JJ
PRACTICE AND PROCEDURE -- application for leave to appeal from summary judgment - application for extension of time within which to seek leave to appeal - where before the primary judge the applicants alleged invalidity of measures relating to the rollout of COVID-19 vaccines and restrictions on unvaccinated individuals in the State of Victoria - where grounds of appeal, save for the issue of costs, have no reasonable prospect of success - extension of time granted - leave…
Status of Appeal to High Court -
8 August 2024: HCA - Special leave refused [2024] HCASL 178
19 Dec 2023
: CCL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1620
Derrington J
MIGRATION - determination by Immigration Assessment Authority not to grant Safe Haven Enterprise visa - whether material error arising from erroneous application of Migration Act 1958 (Cth) s 473DD - whether Authority conducted de novo review to extent required in circumstances where appellant relied on claims made by uncle in separate visa application - consideration of principles regarding scope of de novo review to be conducted by Authority - whether Secretary of…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused with costs [2024] HCASL 135
19 Dec 2023
: CCM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1619
Derrington J
MIGRATION - determination by Immigration Assessment Authority not to grant Safe Haven Enterprise visa - whether material error arising from erroneous application of Migration Act 1958 (Cth) s 473DD - whether Authority conducted de novo review to extent required in circumstances where appellant relied on claims made by uncle in separate visa application - consideration of principles regarding scope of de novo review to be conducted by Authority - whether Secretary of…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused with costs [2024] HCASL 134
19 Dec 2023
: BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201
Markovic, Derrington and Anderson JJ
(
301 FCR 229
)
MIGRATION - appeal from orders made by the Federal Circuit and Family Court of Australia (Div 2) dismissing an application for judicial review of the respondent's (Minister) decision to cancel appellant's Class AH Subclass 101 Child (Permanent) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Cancellation Decision) - where notice of Cancellation Decision under s 501CA(3) of the Act (s 501CA(3) Notice) was handed to the appellant at correctional centre - where the…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application granted [2024] HCASL 145
12 Dec 2023
: Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190
Perry, Sarah C Derrington and Colvin JJ
(
416 ALR 387
)
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - native title - appeal from finding that native title did not exist - where appellant found unable to establish current claim group constituted a normative society united in and by a body of laws and customs unable to establish - whether trial judge misconceived or failed to properly consider evidence concerning the name of the claim group - whether trial judge misconceived the evidence relating to the membership rule, including …
Status of Appeal to High Court -
8 August 2024: HCA - Special leave refused with costs [2024] HCASL 181
12 Dec 2023
: QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 195
Katzmann, O'Callaghan and McEvoy JJ
(
301 FCR 422
)
PRACTICE AND PROCEDURE - where High Court of Australia allowed appeal and remitted matter to be heard and determined by a differently constituted Full Court - where grounds contended before primary judge and first Full Court abandoned and appellant sought leave to raise six new appeal grounds, whether leave to amend notice of appeal should be granted - application for leave to amend notice of appeal dismissed - appeal dismissed MIGRATION - where appellant's visa cancelled…
Status of Appeal to High Court -
11 April 2024: HCA - Special leave application refused with costs [2024] HCASL 94
11 Dec 2023
: Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 193
Burley, Lee and Raper JJ
(
301 FCR 139
)
MIGRATION - appeal from a decision of a single judge of the Federal Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - where the AAT application for merits review of the Minister's non-revocation decision of the appellant's visa cancellation was made out of time - whether notification of the non-revocation decision by email to the appellant's then solicitor constituted proper notification - whether personal …
Status of Appeal to High Court -
11 April 2024: HCA - Special leave application refused with costs [2024] HCASL 97
6 Dec 2023
: Toogood v Gott [2023] FCA 1521
Rangiah J
APPEAL AND NEW TRIAL - whether the primary judge denied the appellants procedural fairness - whether the primary judge failed to provide adequate reasons for judgment BANKRUPTCY AND INSOLVENCY - whether creditor's petition had lapsed - whether creditor's petition invalid - whether bankruptcy notice invalid - whether appellants were solvent - whether primary judge erred in failing to go behind the judgment - whether petitioning creditors obtained benefit of legal costs paid…
Status of Appeal to High Court -
11 April 2024: HCA - Special leave application refused [2024] HCASL 77
4 Dec 2023
: Broadbent v Medical Board of Australia [2023] FCAFC 186
Collier, Meagher and Horan JJ
BANKRUPTCY - appeal from dismissal of application for review of sequestration order made by a registrar - whether error in exercise of discretion to make sequestration order on creditor's petition - whether sufficient cause why sequestration order ought not be made - whether there was in truth and reality a debt due to the petitioning creditor - judgment debt arising from costs orders made against debtor in previous proceedings based on earlier bankruptcy notice - where…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused [2024] HCASL 131
1 Dec 2023
: NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187
Collier, Derrington and Downes JJ
MIGRATION - power to cancel visa under s 501BA(2) of the Migration Act 1958 (Cth) - whether satisfied cancellation was in the "national interest" - whether decision-maker required to take into account impact of unenacted international treaty obligations - whether decision in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 inconsistent with later High Court decision in Plaintiff M1/2021 v Minister for Home…
Status of Appeal to High Court -
11 April 2024: HCA - Special leave application refused with costs [2024] HCASL 112
29 Nov 2023
: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1495
Hespe J
MIGRATION - application to appeal from judgment of Federal Circuit Court - where Tribunal made an error in referring to a "s.359A letter" - whether that error was jurisdictional
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused [2024] HCASL 130
22 Nov 2023
: Fisher v Commonwealth of Australia (No 2) [2023] FCAFC 181
Mortimer CJ, Katzmann, Charlesworth, Abraham and Kennett JJ
PRACTICE AND PROCEDURE - where special case stated for consideration by Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth) - whether final orders should be made reflecting the answers to the case stated - proceeding dismissed
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused with costs [2024] HCASL 59
14 Nov 2023
: Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179
Yates, Beach and Downes JJ
(
300 FCR 1
)
CONSUMER LAW - representative proceedings - alleged defects in motor vehicles by reason of deficiencies in transmission system - where primary judge found affected vehicles were not of acceptable quality when supplied to consumers contrary to the guarantee in s 54 Australian Consumer Law - whether primary judge applied statutory test - the meaning of acceptable quality in a propensity case - extent to which after supply events should be taken into account when assessing…
Status of Appeal to High Court -
13 February 2024: HCA - Special leave application granted [2024] HCASL 27
13 Nov 2023
: Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2023] FCAFC 178
Perram, Nicholas and McElwaine JJ
(
300 FCR 408 ; 176 IPR 336
)
PATENTS - where invention claimed is a safety system for protection against falling drill rods in mining industry - construction - meaning of 'anchor member' - meaning of 'configured to be fixed in a proximal end region of the bore' PATENTS - infringement - whether First Respondent's product included an anchor member - whether First Respondent's product was configured to be fixed in a proximal end region of the bore adjacent to a rock face PATENTS - validity - sufficiency…
Status of Appeal to High Court -
11 April 2024: HCA - Special leave application refused with costs [2024] HCASL 105
3 Nov 2023
: Kazal v Thunder Studios Inc (California) [2023] FCAFC 174
Wigney, Wheelahan and Abraham JJ
PRACTICE AND PROCEDURE - appeal and new trial - apprehended bias - where some time prior to trial the primary judge found the second appellant guilty of contempt of court and sentenced him to a term of imprisonment - where before trial the appellants made an application to the judge that he disqualify himself from further hearing the proceeding on the ground of apprehended bias - where the primary judge refused to disqualify himself - no application by the appellants for…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused with costs [2024] HCASL 56
1 Nov 2023
: Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173
Logan, Rangiah and Markovic JJ
(
300 FCR 67
)
MIGRATION - Migration Act 1958 (Cth) - where Administrative Appeals Tribunal affirmed the Minister's decision not to revoke cancellation of visa - where primary judge found no jurisdictional error - whether the Tribunal overlooked "health" issue under para 9.2 of Direction 90 - where appellant did not articulate any health issues - whether a claim clearly emerged from the Tribunal's findings or other material - appeal dismissed
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused with costs [2024] HCASL 45
30 Oct 2023
: Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172
Collier, Logan and Meagher JJ
(
300 FCR 464 ; 326 IR 413
)
INDUSTRIAL LAW - Enterprise Agreements - appeal by two teachers (school employees) against decision to dismiss an application for back pay for increases to their pay and entitlements under an enterprise agreement commencing during their employment but coming into effect after their respective resignations - where employees sought declarations under s 545 of the Fair Work Act 2009 (Cth) (FWA) that the employers contravened s 50 of the FWA by failing to pay them arrears of…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused [2024] HCASL 44
19 Oct 2023
: Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167
Katzmann, Sarah C Derrington and Kennett JJ
(
300 FCR 354 ; 413 ALR 605
)
MIGRATION - Application for writ of habeas corpus and declaration that item 4 of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) is invalid - where previous Full Court judgment held cancellation of applicant's visa invalid as applicant's aggregate sentence of 12 months' imprisonment not within scope of s 501(7)(c) of Migration Act 1958 (Cth) (Act) - where Act subsequently amended by Amending Act with retrospective effect to treat aggregate…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application granted [2024] HCASL 43
19 Oct 2023
: JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168
Katzmann, Sarah C Derrington, Kennett JJ
(
300 FCR 370 ; 413 ALR 620
)
MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of delegate to mandatorily cancel visa pursuant to s 501(3A) of Migration Act 1958 (Cth) (Act) - whether Tribunal misunderstood and so misapplied para 9.4.2 of Direction 90 when considering effect of cancellation of applicant's visa on Australian business interests - whether findings as to nature and extent of applicant's non-familial ties contrary to evidence -…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application granted [2024] HCASL 42
5 Oct 2023
: EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182
Raper J
MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) affirming a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate not to grant a protection visa - whether the Tribunal made a finding that was illogical, irrational or not based on evidence - whether the Tribunal incorrectly applied s 423A of the Migration Act 1958 (Cth) - appeal dismissed
Status of Appeal to High Court -
8 February 2024: HCA - Special leave application refused with costs [2024] HCASL 17
28 Sep 2023
: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159
Rares, Bromwich and Raper JJ
(
300 FCR 106
)
MIGRATION - where appellant's visa was cancelled under s 501CA(4) of the Migration Act 1958 (Cth) - where an appeal of the Administrative Appeals Tribunal affirmed a decision of a delegate not to revoke the cancellation - where an application for judicial review of the Tribunal's decision was dismissed by a judge of this Court - where the sole ground of appeal is that the primary judge erred by not giving the appellant a reasonable opportunity to present his case and to…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused with costs [2024] HCASL 152
15 Sep 2023
: Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105
Rofe J
BANKRUPTCY AND INSOLVENCY - appeal from Federal Circuit and Family Court of Australia - primary judge refused application to set aside bankruptcy notice - whether primary judge erred in finding that bankruptcy notice was not invalid on the ground of misstatement under s 41(5) of the Bankruptcy Act 1966 (Cth) - whether interlocutory costs orders are "costs of the proceeding" within the meaning of the County Court Civil Procedure Rules 2018 (Vic) - whether issuing bankruptcy…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused [2024] HCASL 30
12 Sep 2023
: FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153
Snaden, Abraham and Halley JJ
(
299 FCR 356
)
MIGRATION - whether the primary judge erred in finding that the appellant had been "refused" a protection visa within the meaning of s 48A of the Migration Act 1958 (Cth) - where the Administrative Appeals Tribunal's affirmation of that refusal had been substituted by the Assistant Minister granting the appellant a different visa under s 417 of the Migration Act 1958 (Cth) HELD - appeal dismissed
Status of Appeal to High Court -
8 August 2024: HCA - Special leave granted [2024] HCASL 197
31 Aug 2023
: BOY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1040
Jackman J
MIGRATION - appeal from decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the Minister refusing to grant the appellant a Protection (Class XA) Visa - whether the primary judge erred by failing to find jurisdiction error by the Tribunal - unnecessary to make a specific finding as to a matter subsumed in a finding of greater generality -…
Status of Appeal to High Court -
8 February 2024: HCA - Special leave application refused [2024] HCASL 2
30 Aug 2023
: Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132
Moshinsky, Abraham and Raper JJ
(
413 ALR 227|(2023) 326 IR 159
)
CORPORATIONS - whistleblower claim under Pt 9.4AAA of Corporations Act 2001 (Cth) - whether s 1644 of the Corporations Act extends application of ss 1317AD and 1317AE of the Corporations Act to detrimental conduct engaged in prior to amendments under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) - whether Item 16 of Pt 2 of Sch 1 to the Amendment Act extends application of ss 14ZZZ and 14ZZZA of the Taxation Administration Act 1953 (Cth) to …
Status of Appeal to High Court -
8 February 2024: HCA - Special leave application refused [2024] HCASL 8
30 Aug 2023
: Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020
Wigney J
TORTS - false imprisonment - where applicant imprisoned for contempt in matrimonial proceeding in Federal Circuit Court of Australia for purported non-compliance with disclosure orders - where judge's contempt declaration and imprisonment orders were set aside for invalidity - consideration of whether imprisonment order was valid until set aside and provided lawful justification for imprisonment - consideration of whether the judge exercised superior court powers to punish…
Status of Appeal to High Court -
8 February 2024: HCA - Transferred to the High Court of Australia [2024 HCASL 23, [2024] HCASL 24 and [2024] HCASL 25
25 Aug 2023
: Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Stewart, Feutrill and Hespe JJ
(
298 FCR 476
)
MIGRATION - appeal - whether leave to argue new grounds ought be granted - Direction No. 90 - whether Tribunal misconstrued the phrase "vulnerable members of the community" in para 8.4(2)(c) of the Direction - whether Tribunal's error material - where Tribunal concluded the appellant engaged in "violent and serious" conduct and that the expectation of the Australian community "weighs strongly" against revocation and that the factors against revocation "significantly…
Status of Appeal to High Court -
8 August 2024: HCA - Application referred to Full Court for hearing as on appeal
18 Aug 2023
: Fulton v Chief of Defence Force [2023] FCAFC 134
Logan, Sarah C Derrington, Stewart JJ
(
180 ALD 109 ; 411 ALR 528
)
DEFENCE AND WAR - appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force - officer's retention considered not to be in the interests of the Defence Force - whether delegate required to take into account annual personal performance reports - whether a mandatory relevant consideration within statutory context of Defence Regulation 2016 ADMINISTRATIVE LAW - appeal from dismissal of application…
Status of Appeal to High Court -
8 February 2024: HCA - Special leave application refused with costs [2024] HCASL 11
14 Aug 2023
: Stuart v State of South Australia [2023] FCAFC 131
Rangiah, Charlesworth and O'Bryan JJ
(
412 ALR 407 ; 299 FCR 507
)
APPEAL AND NEW TRIAL - NATIVE TITLE - appeal from orders made on overlapping native title determination applications - claims brought on behalf of the Arabana people and the Walka Wani people - trial judge finding the ancestors of the Arabana people occupied the overlap area at sovereignty - trial judge concluding the Arabana claim group did not presently possess native title rights and interests in the overlap area - trial judge concluding the Arabana people did not, by…
Status of Appeal to High Court -
8 February 2024: HCA - Special leave granted [2024] HCASL 10
12 Jul 2023
: Hedges v Commissioner of Taxation [2023] FCAFC 105
Logan, Goodman and Hespe JJ
TAXATION - appeal from decision of primary judge dismissing appeal from decision of Administrative Appeals Tribunal - where taxpayer is retired partner of a law firm - whether appellant was entitled to receive capital proceeds from disposal of interest in goodwill of partnership - whether appellant made a capital gain
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 182
12 Jul 2023
: Fisher v Commonwealth of Australia [2023] FCAFC 106
Mortimer CJ, Katzmann, Charlesworth, Abraham and Kennett JJ
(
298 FCR 543
)
HUMAN RIGHTS - discrimination - special case stated - where applicant an Aboriginal man not yet of the age to qualify for the age pension if Social Security Act 1991 (Cth) is applied according to its terms - where Indigenous men have shorter life expectancy than non-Indigenous men - whether applicant or represented persons enjoy the right to apply for and receive age pension 'to a more limited extent' than non-Indigenous men for purposes of s 10 of Racial Discrimination Act…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused with costs [2024] HCASL 58
30 Jun 2023
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717
Wigney J
(
298 FCR 400
)
MIGRATION - appeal from primary judge's decision in Federal Circuit Court quashing decision of Administrative Appeals Tribunal to affirm refusal of partner visa - whether Tribunal's failure to comply with s 359A of the Migration Act 1958 (Cth) amounts to jurisdictional error - whether failure to comply with s 359A was material to Tribunal's decision - whether primary judge erred by not refusing relief on discretionary grounds where breach was not material to Tribunal's…
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 172
26 Jun 2023
: Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) [2023] FCAFC 97
Besanko, Perram and Yates JJ
(
411 ALR 315 ; 174 IPR 66
)
PATENTS - where listing of generic drug on Pharmaceutical Benefits Scheme ('PBS') reduces listing price and Commonwealth subsidy of non-generic form of drug - where Respondent held patent for clopidogrel - where interlocutory injunction obtained restraining generic supplier from entering market with generic clopidogrel - where generic supplier undertook not to seek PBS listing - where Respondent undertook to compensate persons adversely affected by injunction - where…
Status of Appeal to High Court -
18 December 2023: HCA - Special leave application granted [2023] HCA Trans 184
16 Jun 2023
: Al-Dmoor v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 663
Bromwich J
MIGRATION: appeal from orders made by a judge of the (former) Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - where the Tribunal affirmed a decision of the Minister's delegate to refuse to grant the appellant a student visa - where each of the grounds of appeal advanced are in substance the same as the grounds of review considered by the primary judge - whether the primary judge erred by …
Status of Appeal to High Court -
12 October 2023: HCA - Special leave application dismissed [2023] HCASL 154
16 Jun 2023
: United Workers Union v Compass Group Healthcare Hospitality Services Pty Ltd [2023] FCAFC 92
Rares, O'Sullivan and Feutrill JJ
(
324 IR 426
)
INDUSTRIAL LAW - entitlement to redundancy pay under s 119(1)(a) of Fair Work Act 2009 (Cth) - where employer provided employees to work at employer's clients' sites under contracts to provide labour services to client for renewable term - where employment contracts referred to employer's contract with client without mentioning duration - where many employees worked at sites continuously through renewals of employer's client contracts - where employer terminated employees…
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 178
16 Jun 2023
: Meletsis v Yeo in his capacity as trustee of the bankrupt estate of Karas [2023] FCAFC 93
Wigney, Anderson and Abraham JJ
(
412 ALR 68 ;167 ACSR 470
)
TRUSTS AND TRUSTEES - corporate trustee in liquidation - where liquidator assigned company's causes of action against appellants to respondents - whether assigning right, title and interest in causes of action to respondents is limited to the company's right of indemnity against trust property and concomitant equitable lien - whether beneficiaries' interests in claims against appellants were engrafted onto assigned claim - where assigned causes of action are causes of action …
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 173
13 Jun 2023
: Burrows v Macpherson and Kelley Lawyers (Sydney) Pty Ltd [2023] FCA 622
Jackman J
BANKRUPTCY AND INSOLVENCY - appeal against decision concerning application to set aside bankruptcy notice - whether application to set aside bankruptcy notice made in time - where application made more than 21 days from the date of delivery of bankruptcy notice to document exchange and last known address of person, but not more than 21 days from actual notice - construction of regulation 102 of the Bankruptcy Regulations 2021 (Cth) - no "contrary intention" in the Bankruptcy …
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 181
30 May 2023
: Minister for Immigration, Citizenship and Multicultural Affairs v SZRWS [2023] FCAFC 83
Perram, Perry and Thawley JJ
(
297 FCR 589 ; 412 ALR 369
)
MIGRATION - appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) - where Commonwealth policy restricts certain food being brought into immigration detention centres by visitors - whether s 273(1) of the Migration Act 1958 (Cth) authorises contracted third party to exclude visitors in accordance with policy - power to establish and maintain detention centre
Status of Appeal to High Court -
12 October 2023: HCA - Special leave application dismissed with costs [2023] HCASL 150
30 May 2023
: DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
Rares, Thomas and Snaden JJ
(
297 FCR 550 ; 411 ALR 279
)
MIGRATION - appeal from decision of single judge of the Federal Court of Australia - where primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal - where delegate of the Minister refused protection visa application pursuant to s 36(1C)(b) of the Migration Act 1958 (Cth) - where appellant convicted of domestic violence offences - whether primary judge applied wrong test under s 36(1C)(b) of the Act - whether Tribunal erred in…
Status of Appeal to High Court -
19 October 2023: HCA - Special leave application dismissed with costs 2023 HCASL 159
26 May 2023
: V'landys v Australian Broadcasting Corporation [2023] FCAFC 80
Rares, Katzmann and O'Callaghan JJ
DEFAMATION - appeal against primary judge's findings that no imputations conveyed in trial by judge alone - whether primary judge erred in making findings of characteristics of ordinary reasonable viewer of matter complained of without evidence - whether primary judge entitled to have regard to own first or final impressions of whether imputations conveyed - where new case not put to primary judge raised on appeal - Held: appeal dismissed.
Status of Appeal to High Court -
14 September 2023: HCA - Special leave application dismissed with costs [2023] HCASL 140
23 May 2023
: JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76
Bromwich, Thawley and Hespe JJ
(
297 FCR 600 ; 325 IR 159 ; 413 ALR 127
)
CONTRACTS - whether contract between lecturer and education provider was one of employment or independent contractor - whether lecturer fell within ordinary or extended meaning of employee pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth) - right to subcontract or assign - right to control - appeal allowed - lecturer held to be an independent contractor
Status of Appeal to High Court -
12 October 2023: HCA - Special leave application dismissed [2023] HCASL 155
22 May 2023
: Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 74
Katzmann, Feutrill and Raper JJ
MIGRATION - appeal from judgment and orders dismissing application for judicial review of decision of Administrative Appeals Tribunal not to revoke a mandatory cancellation decision under s 501CA(4) of Migration Act 1958 (Cth) - whether the Tribunal lacked jurisdiction because the appellant not given an opportunity to be heard on whether another cancellation power should have been used - whether the Tribunal lacked jurisdiction because the cancellation decision was legally…
Status of Appeal to High Court -
12 October 2023: HCA - Special leave application dismissed [2023] HCASL 141
22 May 2023
: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75
Mortimer CJ, Moshinsky and Banks-smith JJ
(
410 ALR 231 ; 298 FCR 160
)
NATIVE TITLE - claim for compensation under Native Title Act 1993 (Cth) (NTA) - where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants' non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common…
Status of Appeal to High Court -
19 October 2023: HCA - Special leave application granted [2023] HCATrans 143
16 May 2023
: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Abraham J
MIGRATION - judicial review - application for protection visa - appeal from decision of Federal Circuit and Family Court to affirm decision of Administrative Appeals Tribunal - where primary judge found no error by Tribunal considering medical evidence - where primary judge found any error would not be material - whether primary judge erred. HELD - appeal dismissed - no jurisdictional error by the primary judge established.
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused [2024] HCASL 38
12 May 2023
: BDT17 v Minister for Immigration and Border Protection [2023] FCA 452
Wigney J
MIGRATION -- Application for protection visa -- application refused by delegate of Minister for Immigration and Border Protection -- refusal affirmed by Immigration Assessment Authority decision -- judicial review of Authority's decision in Federal Circuit Court -- appeal from Circuit Court -- whether primary judge erred in finding that Authority did not fail to consider two elements of claim said to arise from visa application -- claims not articulated in or otherwise…
Status of Appeal to High Court -
9 November 2023: HCA - Special leave application dismissed with costs [2023] HCASL 174
11 May 2023
: CYH16 v Minister for Immigration and Border Protection [2023] FCA 453
Rofe J
MIGRATION - appeal from Federal Circuit Court of Australia - application for extension of time in which to appeal from decision of Federal Circuit Court - application for extension of time allowed - where appellant sought to rely on two new grounds that were not relied upon in the Federal Circuit Court - whether leave should be granted to the appellant to rely on the new grounds - appeal dismissed
Status of Appeal to High Court -
7 September 2023: HCA - Special leave application dismissed with costs [2023] HCASL 127
5 May 2023
: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
Wheelahan J
MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia (Div 2) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - where the appellant had sought review of a decision of a delegate of the Minister to refuse to grant the appellant a temporary student visa - appellant raised 12 grounds of appeal - consideration of correct formulation of test for apprehended bias - appeal dismissed
Status of Appeal to High Court -
7 September 2023: HCA - Special leave application dismissed [2023] HCASL 120
3 May 2023
: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Markovic, Thomas and Button JJ
(
297 FCR 1
)
MIGRATION - visas - cancellation - where Appellant was convicted of criminal offences and sentenced to terms of imprisonment - appeal from orders of a judge of the Federal Court of Australia dismissing an application for judicial review - where Appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) - where the delegate decided not to revoke the cancellation under s 501CA of the Migration Act 1958 (Cth) - where the Administrative Appeals Tribunal…
Status of Appeal to High Court -
14 September 2023: HCA - Special leave application granted [2023] HCATrans 117
2 May 2023
: BHG20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 391
Anderson J
MIGRATION - Administrative Appeals Tribunal's affirmation of a decision of delegate of the first respondent to refuse to grant the appellant a Subclass XA-866 Permanent Protection visa - Appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing appellant's application for judicial review of Tribunal's decision - Whether Tribunal failed to consider allegedly corroborative evidence relevant to Appellant's claim - Where it is improbable…
Status of Appeal to High Court -
7 September 2023: HCA - Special leave application dismissed [2023] HCASL 131
28 Apr 2023
: Henley Constructions Pty Ltd v Henley Arch Pty Ltd [2023] FCAFC 62
Yates, Rofe and McElwaine JJ
(
171 IPR 225 ; 410 ALR 116 ; 297 FCR 353
)
TRADE MARKS - appeal - where primary judge found that the respondent's registered trade mark HENLEY was valid and infringed by the first appellant - whether primary judge erred in finding that HENLEY was capable of distinguishing the respondent's services under s 41 of the Trade Marks Act 1995 (Cth) (the Trade Marks Act) - where primary judge found that HENLEY was not inherently distinctive - where primary judge found that s 41(6) was satisfied - no error established in…
Status of Appeal to High Court -
12 October 2023: HCA - Special leave application dismissed with costs [2023] HCASL 146
27 Apr 2023
: Stolyar v Scott (Trustee) [2023] FCAFC 61
Banks-smith, Downes and Jackman JJ
(
410 ALR 346
)
APPEAL AND NEW TRIAL - where arguments sought to be advanced which were not advanced at first instance - where the arguments may have been met by evidence at the trial - arguments that a claim is not maintainable must be expressly pleaded under r 16.08(c) of the Federal Court Rules 2011 (Cth) - whether the primary judge erred in their exercise of discretion in ordering indemnity costs EQUITY - whether the primary judge erred in focussing on the source of purchase moneys as…
Status of Appeal to High Court -
7 September 2023: HCA: Special leave application dismissed with costs [2023] HCASL 129
20 Apr 2023
: Salma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 356
Burley J
MIGRATION - appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister to refuse to grant the appellants temporary graduate visas - temporary graduate visas - application of Public Interest Criterion 4005 - whether primary judge erred in not finding that the decision of the Tribunal was affected by jurisdictional error…
Status of Appeal to High Court -
9 May 2024: HCA - Special leave application refused [2024] HCASL 149
6 Apr 2023
: Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54
Wigney, O'Bryan and Downes JJ
(
297 FCR 180
)
CONSUMER LAW - unconscionable conduct - statutory unconscionability under s 21 of the Australian Consumer Law (ACL) - registered training organisation provided vocational education and training under Commonwealth's Vocational Education and Training Fee Higher Education Loan Program (VFH scheme) - whether certain changes made by the registered training organisation to the student enrolment process, and the claiming and retaining of revenue in respect of enrolments under the…
Status of Appeal to High Court -
14 September 2023: HCA - Special leave application granted [2023] HCATrans 118
28 Mar 2023
: Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47
Derrington, Button and Jackman JJ
INSURANCE - construction and interpretation of policy - meaning of expression "location insured" in policy relating to large scale project for the construction of a length of highway - whether expression referred to whole of the project site or location where the insured loss or damage occurred
Status of Appeal to High Court -
7 September 2023: HCA - Special leave application dismissed with costs [2023] HCASL 123
28 Mar 2023
: Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
Collier, Thomas and Raper JJ
(
323 IR 316 ; 297 FCR 323
)
INDUSTRIAL LAW - section 114 of the Fair Work Act 2009 (Cth) - appeal from a decision of this Court which found that the employer had not contravened s 114 by requiring employees to work on a public holiday - whether "request" within the meaning of subss 114(2) and (3) means a request in its ordinary sense or includes a requirement by an employer to work on a public holiday where no request was made - appeal allowed
Status of Appeal to High Court -
21 November 2023: HCA - Special leave application refused with costs [2023] HCATrans 170
27 Mar 2023
: Toyota Motor Corporation Australia Limited v Williams [2023] FCAFC 50
Moshinsky, Colvin and Stewart JJ
(
408 ALR 582 ; 296 FCR 514
)
CONSUMER LAW - representative proceedings - alleged defect in motor vehicle by reason of defective exhaust system - where primary judge found breach of guarantee of acceptable quality pursuant to s 54 Australian Consumer Law - consideration of proper construction of s 54 - where appellant claims statute requires regard to subjective circumstances of claimant - where appellant submits there is heterogeneity of group members - where s 54 references a reasonable consumer -…
Status of Appeal to High Court -
17 November 2023: HCA - Special leave application granted [2023] HCATrans 162
24 Mar 2023
: Frigger v Trenfield (No 3) [2023] FCAFC 49
Allsop CJ, Anderson and Feutrill JJ
APPEAL AND NEW TRIAL - appeal - appeal by way of rehearing - errors of fact - advantage of primary judge - principles of appellate review. BANKRUPTCY AND INSOLVENCY - appeal from the decision of the primary judge in Frigger v Trenfield (No 10) [2021] FCA 1500 (primary judgment) - where the appellants made numerous challenges to the findings of the primary judge with respect to certain disputed assets - whether these disputed assets were contributed to the appellants'…
Status of Appeal to High Court -
23 August 2023: HCA - Special leave application dismissed [2023] HCASL 110
22 Mar 2023
: Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44
Yates, Stewart and Rofe JJ
(
407 ALR 473 ; 170 IPR 281
)
TRADE MARKS - application for leave to appeal from judgment of a single judge of the Court pursuant to s 195(2) of the Trade Marks Act 1995 (Cth) (the Act) - where primary judge dismissed an appeal from the decision of a delegate of the Registrar of Trade Marks in opposition proceedings - where delegate granted respondent's application under s 92(4)(b) of the Act to remove the applicant's registered trade mark MOTHERLAND from the Register for non-use - whether primary judge…
Status of Appeal to High Court -
15 September 2023: HCA - Special leave applications refused with costs - [2023] HCATrans 123 ; [2023] HCATrans 124
13 Mar 2023
: BUB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 212
Nicholas J
Status of Appeal to High Court -
8 June 2023: HCA - Special leave application dismissed [2023] HCASL 89
9 Mar 2023
: Director-General of Security v Plaintiff S111A/2018 [2023] FCAFC 33
Wigney, Bromwich and O'Callaghan JJ
(
408 ALR 523 ; 296 FCR 639
)
MIGRATION - where the primary judge set aside two adverse security assessments (ASAs) of the respondent - where the respondent's visa was refused as a consequence of the ASA decisions - whether the use of information by the executive that is likely to have been obtained by torture by a third party is prohibited - whether it was a denial of procedural fairness to use such information - whether it was a denial of procedural fairness to not ask particular questions of the…
Status of Appeal to High Court -
7 March 2024: HCA - Special leave application refused with costs [2024] HCASL 67
8 Mar 2023
: Hyder v Commissioner of Taxation [2023] FCAFC 29
Logan, Bromwich and Hespe JJ
(
297 FCR 124
)
TAXATION - declarations and writ of prohibition sought against the Commissioner of Taxation pursuant to s 39B of the Judiciary Act 1903 (Cth) - Commissioner's power to issue assessments to more than one taxpayer in respect of income from the same source - accrual of general interest charge (GIC) - whether Commissioner required to give credit for tax paid by different taxpayer when calculating GIC - whether due date for payment ought to be deferred - Commissioner's power of…
Status of Appeal to High Court -
3 August 2023: HCA - Special leave application dismissed with costs [2023] HCASL 99
17 Feb 2023
: Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14
Markovic, McElwaine and McEvoy JJ
(
296 FCR 77
)
ADMINISTRATIVE LAW - appeal from a decision of the second respondent (Tribunal) to uphold a decision of a delegate of the first respondent (ASIC) to make a banning order under the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) - where the banning order prohibited the applicant from engaging in credit activities - whether the Tribunal erred by applying the NCCP Act in force at the time of the Tribunal's decision in circumstances where the banning order was…
Status of Appeal to High Court -
15 June 2023: HCA - Special leave application dismissed [2023] HCASL 95
16 Feb 2023
: McMillan Investment Holdings Pty Ltd v Morgan [2023] FCAFC 9
Yates, Beach and Markovic JJ
(
407 ALR 328 ; 164 ACSR 129 ; 295 FCR 543
)
BANKRUPTCY AND INSOLVENCY -- appeal against making of a pooling order under s 579E(1) of Corporations Act 2001 (Cth) - whether primary judge erred in finding that s 579E(1)(b)(iv) applies - where primary judge satisfied that alleged chose in action was "particular property" capable of being "used" for the purposes of s 579E(1)(b)(iv) - where alleged chose in action was a joint right to sue held by second and third respondents to the appeal - where joint right came into…
Status of Appeal to High Court -
15 September 2023: HCA - Special leave application granted [2023] HCATrans 122
