Special Leave Applications to the High Court - 2024 Judgments

17 Jul 2024 :   Glass Hardware Australia Pty Ltd v TCT Group Pty Ltd [2024] FCAFC 95
Yates, Charlesworth and Rofe JJ      
PATENTS - innovation patent relating to hinges - infringement - validity - whether primary judge erred in the proper construction of the invention disclosed PATENTS - validity - lack of clear and complete description - classical sufficiency - "relevant range" - s 40(2)(a) of the Patents Act 1990 (Cth) - whether primary judge erred in finding specifications did not enable skilled addressee to perform invention over the whole area claimed without undue burden PATENTS -…

Status of Appeal to High Court - 7 November 2024: HCA - Special leave refused with costs [2024] HCASL 295

11 Jul 2024 :   Patrick v Australian Information Commissioner [2024] FCAFC 93
Bromwich, Abraham and McEvoy JJ       ( 304 FCR 1 )
ADMINISTRATIVE LAW - the appellant sought a declaration that the legal limits of the Australian Information Commissioner's authority have been exceeded and his right to an Information Commissioner review unlawfully delayed - where the appellant had several ongoing applications before the Commissioner for review of decisions made by Commonwealth agencies - where there were very significant delays in undertaking the reviews - whether there had been unreasonable delay by the…

Status of Appeal to High Court - 7 November 2024: HCA - Special leave refused with costs [2024] HCASL 291

5 Jul 2024 :   Commonwealth of Australia v Palmanova Pty Ltd [2024] FCAFC 90
Banks-smith, Abraham and Downes JJ       ( 304 FCR 163 )
CULTURAL HERITAGE - where "protected object of a foreign country" (the Artefact) purchased by the respondent was, upon its entry into Australia, intercepted under the Customs Act 1901 (Cth) and seized under the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act) - whether the Artefact is liable to forfeiture under s 14(1) of the Act STATUTORY INTERPRETATION - proper construction of s 14(1) of the Act - whether export of protected object from the foreign country…

Status of Appeal to High Court - 7 November 2024: HCA - Special leave granted {2024} HCASL 294

5 Jul 2024 :   Raiz v Director of Professional Services Review [2024] FCAFC 91
Goodman, O'Sullivan and McElwaine JJ       ( 304 FCR 600 )
ADMINISTRATIVE LAW- appeal from primary judge who dismissed judicial review application concerning appointment of a Professional Services Review Committee to investigate potential inappropriate conduct under Part VAA of the Health Insurance Act 1973 (Cth) whether appellant's submissions were considered by the Director before deciding to establish the Committee- appellant failed to discharge burden of establishing that submissions were not considered. ADMINISTRATIVE LAW-…

Status of Appeal to High Court - 7 November 2024: HCA - Special leave refused with costs [2024] HCASL 290

5 Jul 2024 :   R&B Investments Pty Ltd (Trustee) v Blue Sky (Reserved Question) [2024] FCAFC 89
Murphy, Beach, Lee JJ       ( 304 FCR 395 )
REPRESENTATIVE PROCEEDINGS - open class securities class action consolidated on terms - pending application for approval of notice to group members prior to opt-out - where common fund order proposed which would provide for the distribution of funds to a solicitor otherwise than as payment for costs and disbursements incurred in relation to the conduct of the proceeding - where extant controversy as to power to make Solicitors' CFO - where question reserved to the Full Court …

Status of Appeal to High Court - 7 November 2024: HCA - Special leave granted [2024] HCASL 286

26 Jun 2024 :   PepsiCo, Inc v Commissioner of Taxation [2024] FCAFC 86
Perram, Colvin and Jackman JJ       ( 303 FCR 1 )
TAXATION - royalty withholding tax - where non-resident taxpayers entered into exclusive bottling agreements ('EBAs') with an Australian company ('Bottler') for the bottling and sale of beverages in Australia - where EBAs provided for sale of concentrate by the taxpayers or their nominated seller to the Bottler - where EBAs included a licence of the taxpayers' trademarks and other intellectual property but did not provide for a royalty - whether the taxpayers were liable to…

Status of Appeal to High Court - 7 November 2024: HCA - Special leave granted - [2024] HCASL 298, [2024] HCASL 299, [2024] HCASL 300, [2024] HCASL 301, [2024] HCASL 302, [2024] HCASL 303

20 Jun 2024 :   Veale v Coleman [2024] FCAFC 83
Markovic, Halley and Cheeseman JJ       ( 304 FCR 182 )
BANKRUPTCY AND INSOLVENCY - application to set aside bankruptcy notice issued under s 41(1) of the Bankruptcy Act 1966 (Cth) - foreign currency judgment debt - where bankruptcy notice includes incorrect date for conversion of foreign currency judgment debt to Australian dollars - where bankruptcy notice includes Reserve Bank of Australia rate of currency conversion rounded to two decimal places - where rate of currency conversion is rounded down rather than rounded up -…

Status of Appeal to High Court - 10 October 2024: HCA - Special leave application refused with costs [2024] HCAL 267

18 Jun 2024 :   Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81
Mortimer CJ, Kennett and Horan JJ       ( 304 FCR 262 )
ADMINISTRATIVE LAW - appeal - detention of Australian women and children by non-state actor in Al-Roj camp in North-East Syria - whether writ of habeas corpus should issue to the Commonwealth - whether Commonwealth has control over the custody or detention of the individuals - whether the writ should issue to test the asserted lack of control - each ground of appeal dismissed

Status of Appeal to High Court - 23 September 2024: HCA - Special leave application refused [2024] HCATrans 65

14 Jun 2024 :   Commissioner of Taxation v Michael John Hayes Trading Pty Ltd as trustee of the MJH Trading Trust [2024] FCAFC 80
Bromwich, Thawley and Hespe JJ       ( 303 FCR 62 )
TAXATION - whether Administrative Appeals Tribunal erred in its construction of s 207-155 of the Income Tax Assessment Act 1997 (Cth) - alleged dividend stripping operation - Tribunal erred in its construction of s 207-155 - matter remitted to the Tribunal for redetermination according to law

Status of Appeal to High Court - 10 October 2024: HCA - Special leave application refused with costs [2024] HCASL 268

16 May 2024 :   Environment Council of Central Queensland Inc v Minister for the Environment and Water [2024] FCAFC 56
Mortimer CJ, Colvin and Horan JJ       ( 304 FCR 91 )
ENVIRONMENTAL LAW - appeal - s 78(1)(a) Environment Protection and Biodiversity Conservation Act 1999 (Cth) - extended operation of two existing coal mines - appellant claimed effects of climate change should result in greater controlling provisions - challenges to Minister's reasoning about future global emissions levels and impact from extended operation of the two mines - Minister's findings allegedly affected by irrationality - each ground of appeal dismissed

Status of Appeal to High Court - 8 August 2024: HCA - Special leve refused with costs [2024] HCASL 201

2 May 2024 :   Yushkova v Johnston (Trustee) in the matter of bankrupt estate of King [2024] FCA 454
Logan J      
BANKRUPTCY AND INSOLVENCY - where the appellant appeals from a decision of the Federal Circuit Court of Australia (Circuit Court), as it then was, concerning the interest of a bankrupt in real property jointly owned by her and the bankrupt - where the appellant alleges that the bankrupt had no beneficial interest in the real property - whether the primary judge erred in determining that the bankrupt had a legal and beneficial interest in the real property - appeal dismissed…

Status of Appeal to High Court - 5 September 2024: HCA - Special leave refused [2024] HCASL 215

26 Apr 2024 :   Azimitabar v Commonwealth of Australia [2024] FCAFC 52
Rangiah, Anderson and Button JJ       ( 303 FCR 282 )
MIGRATION - appeal from a decision of a single judge of the Federal Court of Australia dismissing an application for damages arising from the alleged unlawful detention of the appellant at the Mantra Bell City Hotel and the Park Hotel (the Hotels) - whether subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act 1958 (Cth) (the Act) impliedly confers a power on the Minister to approve "another place" of immigration detention - whether the…

Status of Appeal to High Court - 5 September 2024: HCA - Special leave refused with costs [2024] HCASL 236

22 Apr 2024 :   Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51
Collier, Rangiah and Charlesworth JJ       ( 304 FCR 136 ; 331 IR 446 )
INDUSTRIAL LAW - application for judicial review of decisions of the Full Bench of the Fair Work Commission - where Full Bench granted extension of time to appeal and permission to appeal against decision to approve enterprise agreement and upheld appeal - whether decisions and procedural orders affected by apprehended bias - where applicant contends that Full Bench identified and investigated a theory and developed interest in vindication of its theory - whether fair-minded …

Status of Appeal to High Court - 5 September 2024: HCA - Special leave refused with costs [2024] HCASL 224

17 Apr 2024 :   Buzadzic v Commissioner of Taxation [2024] FCAFC 50
Bromwich, Abraham and McEvoy JJ      
TAXATION - where primary judge dismissed an appeal from the Administrative Appeals Tribunal affirming Commissioner of Taxation's decision to disallow objections upon the basis of fraud or evasion, and to impose substantial penalties and shortfall interest charges - no error on the part of the primary judge established - leave refused to run an additional ground of appeal not run before the primary judge - appeal dismissed with costs

Status of Appeal to High Court - 5 September 2024: HCA - Special leave refused with costs [2024] HCASL 244

5 Apr 2024 :   Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45
Katzmann, Snaden and Raper JJ       ( 302 FCR 589 ; 330 IR 421 )
INDUSTRIAL LAW - judicial review of decision of a full bench of the Fair Work Commission (FWC) under s 39B of Judiciary Act 1903 (Cth) - alleged unfair dismissals - dismissals effected for operational reasons - whether dismissals were cases of genuine redundancy - where FWC was not satisfied dismissals were cases of genuine redundancy because employees could be redeployed to perform work undertaken by contractors - where Full Bench dismissed appeal - whether s 389(2) of Fair …

Status of Appeal to High Court - 5 September 2024: HCA - Special leave granted [2024] HCASL 221

19 Mar 2024 :   Tratter v Aware Super [2024] FCAFC 36
O'Callaghan, Anderson and McElwaine JJ      
SUPERANNUATION -- appeal under s 1057(1) of the Corporations Act 2001 (Cth) from determination of the Australian Financial Complaints Authority (AFCA) affirming a decision of the trustee of a superannuation fund in relation to the apportionment of a death benefit -- where the trustee of the fund apportioned the death benefit 70% to the deceased member's former spouse and 30% to the deceased member's mother -- whether AFCA made error of law in determining that the trustee's…

Status of Appeal to High Court - 8 August 2024: HCA - Special leave refused [2024] HCASL 172

18 Mar 2024 :   Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34
Sarah C Derrington, Colvin and Jackson JJ       ( 302 FCR 159 )
MIGRATION - application by Minister for leave to appeal against grant of interlocutory injunction restraining the removal of the respondent from Australia - where respondent has exhausted all avenues of review and appeal and does not contest that he is an unlawful non-citizen -where respondent has sought personal intervention of Minister under ss 195A and 417 of the Migration Act 1958 (Cth) - where some requests remain pending and others have not been referred to the…

Status of Appeal to High Court - 9 May 2024: HCA - Special leave application granted [2024] HCASL 146

5 Mar 2024 :   DTJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 263
Lee J      
MIGRATION - appeal from a decision of a single judge of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of the second respondent's (Tribunal) decision - where Tribunal affirmed decision of the first respondent (Minister) to refuse a protection visa application lodged by the appellant - whether the primary judge erred in failing to find that the decision of the Tribunal was legally unreasonable - principles of legal…

Status of Appeal to High Court - 8 August 2024: HCA - Special leave refused with costs [2024] HCASL 185

29 Feb 2024 :   J Hutchinson Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 18
Wigney, Bromwich and Anderson JJ       ( 329 IR 147 ; 302 FCR 79 )
COMPETITION LAW - industrial law - appeals from orders made as to liability and penalty for making, and giving effect to, an arrangement, or arriving at an understanding, containing a provision preventing or hindering the appellant from acquiring services from a subcontractor, contravening ss 45E(3) and 45EA of the Competition and Consumer Act 2010 (Cth) - where primary judge found that there was an arrangement or understanding containing a provision preventing or hindering…

Status of Appeal to High Court - 8 August 2024: HCA - Special leave granted [2024] HCASL 182

23 Feb 2024 :   Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17
Banks-smith, O'Sullivan and Feutrill JJ       ( 302 FCR 375 )
TRUSTS AND TRUSTEES - trustee removed by deed - nature and characteristics of former trustee's right of indemnity following removal - principles CONVEYANCING - fraudulent conveyance - whether deed of removal of trustee voidable under s 86 of the Law of Property Act 1936 (SA) as conveyance of property made with intent to defraud creditors - where trustee entitled to payment from trust assets pursuant to right of indemnity - whether trustee a creditor for purpose of s 86 -…

Status of Appeal to High Court - 8 August 2024: HCA - Special leave refused with costs [2024] HCASL 187

23 Feb 2024 :   Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2024] FCAFC 15
Perram, Nicholas, Burley, Rofe and Downes JJ       ( 177 IPR 20 ; 303 FCR 100 )
CONTRACTS - construction - scope of releases in settlement agreement - prima facie canon of construction -whether releases apply to proceeding TRADE MARKS - infringement - trap viewing - extra-territorial application of s 120(1) of the Trade Marks Act 1995 (Cth) - whether images were available to consumers in the ordinary course of trade - where the Appellant permitted images to be uploaded to and displayed on its website - where such images were displayed as part of a…

Status of Appeal to High Court - 6 June 2024: HCA - Special leave refused with costs [2024] HCASL 165

22 Feb 2024 :   Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25
Lee, Anderson and McElwaine JJ       ( 301 FCR 569 )
CORPORATIONS - application made by the Australian Securities and Investments Commission (ASIC) under s 70(3) of the Australian Securities and Investments Act 2001 (Cth) (ASIC Act) - where failure to comply with notice issued pursuant to s 33(1) of the ASIC Act - where primary judge held ASIC fulfilled pre-condition in s 70(2) requiring ASIC to certify in writing the failure to comply - whether primary judge erred in finding the Court was empowered to conduct inquiry pursuant …

Status of Appeal to High Court - 6 June 2024; HCA - Special leave refused with costs [2024] HCASL 164

16 Feb 2024 :   CEU22 v Minister for Home Affairs [2024] FCAFC 11
Wigney, Thawley and Wheelahan JJ       ( 301 FCR 578 )
MIGRATION - Minister considered non-refoulement in assessing national interest under s 501(3) - whether Minister was required correctly to interpret Australia's unenacted non-refoulement obligations in making the decision - if unenacted non-refoulement obligations misunderstood, there was no jurisdictional error MIGRATION - whether Minister failed meaningfully to consider materials or merits of the case - whether apprehension of bias on the part of the Minister - Minister…

Status of Appeal to High Court - 8 August 2024: HCA - Special leave refused with costs [2024] HCASL 190