Browse Federal Court Judgments

Published in the last week

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


Practice and Procedure ; Corporations Law
Scottish Pacific Business Finance Pty Ltd v Qaqour, in the matter of Penny World Pty Ltd (receivers and managers appointed) (No 3) [2022] FCA 951
PRACTICE AND PROCEDURE - freezing orders - substituted service - joinder of parties to proceeding - where plaintiff allegedly advanced funds to fifth defendant based on fraudulent invoices - service outside jurisdiction - where real risk funds will be dissipated - leave granted
HALLEY J - 10 AUGUST 2022


Practice and Procedure ; Privacy
McEwan v Office of the Australian Information Commissioner [2022] FCA 955
PRACTICE AND PROCEDURE - judicial review of decision of Information Commissioner to decide not to investigate complaint under s 41(1)(a) of the Privacy Act 1988 (Cth) - application for miscellaneous interlocutory orders - where orders sought included orders for discovery, joinder, interrogatories and filing of a defence - where previous case management orders made in a related proceeding - where no basis for making orders sought - application dismissed
LOGAN J - 5 July 2022


Corporations Law
Absolute Equity Performance Fund Ltd, in the matter of Absolute Equity Performance Fund Ltd [2022] FCA 933
CORPORATIONS - members' scheme of arrangement - first court hearing - application under ss 411 and 1319 of the Corporations Act (Cth) for orders convening a meeting of members to consider and agree a proposed scheme of arrangement - proposed acquisition of shares in target company in exchange for shares in acquiring company -ineligible overseas shareholders cashed out - scheme consideration to be determined after meeting of members to approve scheme and second hearing, based on net tangible assets of target company and acquiring company in accordance with scheme implementation agreement - application allowed
HALLEY J - 11 August 2022


Practice and Procedure ; Intellectual Property
The Epoch Holding Group Pty Ltd v Carrodus [2022] FCA 947
PRACTICE AND PROCEDURE - where non-publication orders previously made in respect of evidence -where the evidence contains commercially sensitive information the subject of the proceedings - whether non-publication orders are necessary to prevent prejudice to the proper administration of justice - whether non-publication orders previously made ought be continued - Held: non-publication orders continued until further order.
Cheeseman J - 16 August 2022


Administrative Law
Chukwuma v Attorney General of Australia [2022] FCA 948
ADMINISTRATIVE LAW - application for judicial review of decision by delegate of the Attorney-General to refuse the applicant's release on parole - where applicant to be deported upon release - whether reference to "the community" in ss 19AKA and 19ALA of the Crimes Act 1914 (Cth) are only to the "Australian community" - whether delegate took into account an irrelevant consideration by considering the applicant's risk to a foreign community or made an illogical finding by considering the applicant's risk to the Australian community - delegate of the Attorney-General did not err - application dismissed
RANGIAH J - 16 AUGUST 2022


Practice and Procedure ; Migration
DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Amended Notice of Appeal) [2022] FCA 953
PRACTICE AND PROCEDURE - application to file amended notice of appeal - application to rely on fresh evidence on appeal - where Immigration Assessment Authority found evidence was 'new information' under Pt 7AA of Migration Act 1958 (Cth) - where possible translation errors at protection visa interview - where issue not previously raised - where application requires adjournment of appeal
PERRAM J - 26 JULY 2022


Corporations Law
Longley, in the matter of Dixon Advisory & Superannuation Services Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 950
CORPORATIONS - application under s 439A(6) of the Corporations Act 2001 (Cth) to further extend the period in which the plaintiffs must convene the second meeting of the creditors under s 439A - whether appropriate case for further extension of convening period - orders granted
MOSHINSKY J - 12 AUGUST 2022


Costs ; Bankruptcy
Jang v Trustees of the Property of Lee (bankrupt) (No 2) [2022] FCA 941
COSTS - application by respondent for costs to be paid on an indemnity basis - where applicant did not accept a Calderbank offer - where applicant did not accept an offer of compromise - where applicant's failure to accept Calderbank offer was unreasonable - application granted
MARKOVIC J - 16 August 2022


Practice and Procedure ; Extradition ; Administrative Law
Coates-Kelly v New Zealand [2022] FCAFC 131
PRACTICE AND PROCEDURE - interlocutory application for leave to withdraw admissions made before the primary judge and magistrate - application made pursuant to rr 26.11 or 1.32 of the Federal Court Rules 2011 - where appellant contends admissions were not true - where appellant contends circumstances in which admissions were made justify leave being granted - leave refused - application dismissed EXTRADITION - surrender to New Zealand - where appellant appeals from decision of primary judge confirming an order of a magistrate surrendering the appellant to New Zealand under s 34(1)(c) of the Extradition Act 1988 (Cth) - where appellant convicted in absentia of offences under the Tax Administration Act 1994 (NZ) - where appellant claims error in the primary judge concluding that the warrant is a "New Zealand warrant" within the meaning of s 5 of the Extradition Act - where appellant claims surrender would be unjust or oppressive - appeal dismissed ADMINISTRATIVE LAW - application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of a magistrate to indorse a New Zealand warrant under s 28 of the Extradition Act 1988 (Cth) - where applicant seeks declaration that the warrant issued by the Dunedin District Court in New Zealand is not a "New Zealand warrant", certiorari quashing the Magistrate's indorsement of the warrant, and a consequential order to effect the release of the applicant from prison - lack of utility to exercise the Court's discretion - relief inconsistent with the conclusion that the appeal be dismissed - s 39B application dismissed
LOGAN, ABRAHAM AND O'SULLIVAN JJ - 16 August 2022


Environmental Protection
Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944
ENVIRONMENT LAW - application for interlocutory injunction - where Commissioner for Main Roads undertaking freeway works - where works involve the clearing of habitat for endangered and critically endangered species - where application challenges the validity of the approval for the freeway works issued under the Environmental Protection and Biodiversity Conversation Act 1999 (Cth) - where an interim injunction was granted - whether a condition can be imposed requiring the submission of an 'action management plan' if and only if there is an election under s 134(3)(e) - whether there was an election on the facts - whether the conditions to the approval were such that the Minister's deliberative task was impermissibly deferred - whether the delegate that approved the plans was validity empowered by the approval condition - whether an approval condition must be approved by the same delegate that issued the approval of the action - relevance of a financially unsupported undertaking as to damages - whether the balance of convenience favours the granting of relief - application dismissed
COLVIN J - 9 August 2022


Migration
BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936
MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal to affirm delegate's decision not to revoke mandatory cancellation of visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) - whether applicant denied procedural fairness - whether review conducted on a different basis from that which informed the Tribunal's decision - whether Tribunal failed to consider representation said to "clearly emerge" on the materials ADMINISTRATIVE LAW - procedural fairness - whether applicant given opportunity to respond to issues critical to the decision - whether applicant ought to have been given opportunity to respond to adverse credit finding - whether applicant ought to have been given opportunity to respond to adverse information sourced by the Tribunal itself
SC DERRINGTON J - 15 August 2022


Taxation ; Administrative Law
Yara AB v Minister for Industry, Science and Technology [2022] FCA 847
TAXATION - imposition of 'dumping duty' under s 8 of Customs Tariff (Anti-Dumping) Act 1975 (Cth) - application for judicial review of respondent's declaration under s 269TG of Customs Act 1901 (Cth) affirming the publication of a dumping duty notice for ammonium nitrate exported to Australia - applicant exported ammonium nitrate to Australia from Sweden - Australian manufacturers of ammonium nitrate applied under s 269TB of Customs Act 1901 (Cth) for publication of a dumping duty notice over exports - investigation commenced by Anti-Dumping Commission to assess extent of injury to the Australian industry caused by exports - Commission produced report to respondent per s 269TEA of Customs Act 1901 (Cth) recommending the publication of a dumping duty notice in respect of ammonium nitrate exports - application for review of the Commissioner's decision by the Anti-Dumping Review Panel made per s 269ZZE of Customs Act 1901 (Cth) - Review Panel required Commission to conduct reinvestigation - Review Panel conducted review of Commissioner's decision on "reviewable grounds" pursuant to s 269ZZG of Customs Act 1901 (Cth) - Review Panel recommended the respondent affirm decision to publish dumping duty notice as the "correct or preferable decision" ADMINISTRATIVE LAW - judicial review application relied on s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of Judiciary Act 1903 (Cth) - whether Commission misconstrued "because of that" causation requirement or adopted erroneous approach to "material injury" in s 269TG(1) of Customs Act 1901 (Cth) - whether respondent's decision misconstrued s 269TAE(2C) of Customs Act 1901 (Cth) to permit cumulative assessment of the "effect of those goods" - applicant argued relevant decision-makers did not consider normal ebb and flow of business when assessing injury - nature of review to be conducted by Review Panel - Review Panel argued to have not determined decision "in like manner" as the respondent as statutorily required - application dismissed
WIGNEY J - 21 July 2022


Migration
Soro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 940
MIGRATION -- alleged third party fraud on Tribunal -- no fraud -- application dismissed with costs
JAGOT J - 15 AUGUST 2022


Costs ; Administrative Law
Myers Pharmacy v Australian Community Pharmacy Authority [2022] FCA 932
COSTS - where application the subject of the decision under review in the proceeding was discontinued by the second respondent - where subject matter of the proceeding has evaporated and proceeding dismissed - where parties unable to agree on orders disposing of the proceeding - proceeding dismissed by consent at case management hearing - applicant applied for costs against all respondents - third and fourth respondents applied for costs against applicant on the basis no relief was sought against either -inference drawn that the second respondent withdrew her application to the Secretary due to likely success of applicant in the proceeding - second respondent to pay applicant's costs - no other order as to costs
THAWLEY J - 12 August 2022


Consumer Law
Australian Competition and Consumer Commission v Google LLC (No 4) [2022] FCA 942
CONSUMER LAW - where first respondent found to have contravened ss 18, 29 and 34 of the Australian Consumer Law (ACL) - where second respondent found to have breached the same provisions of the ACL by adopting and endorsing first respondent's conduct - where parties agreed on relief, declarations which should be made and pecuniary penalties which should be imposed - whether penalty of $60 million as agreed by the parties was an appropriate penalty - where precise number of contraventions could not be calculated - where arithmetic maximum penalty would be so disproportionately large as to make precise calculation unnecessary and unhelpful - whether appropriate to adopt "course of conduct" principle or totality principle in assessing multiple contraventions - held that penalty submitted by the parties was an appropriate penalty - declarations and orders made, including orders for various compliance measures agreed between the parties under s 246(2)(b) of the ACL
THAWLEY J - 12 August 2022


Practice and Procedure ; Damages
International Minerals Pty Ltd v State of Western Australia [2022] FCA 938
PRACTICE AND PROCEDURE - applicant and another company brought failed proceedings in High Court challenging validity of Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) - applicant's sole director also engaged in defamation proceeding with Premier of Western Australia which included allegations relating to the enactment of that legislation - applicant's sole director announced on radio shortly before trial in defamation proceedings that these proceedings would be commenced against Premier and others claiming $50 million damages - where during radio announcement director referred to deceit and dishonesty by proposed respondents in relation to the enactment of the legislation - where two of the proposed respondents named in radio interview were also witnesses in upcoming defamation trial - where no steps taken by applicant to attempt to resolve dispute prior to commencing proceedings - where proceedings commenced by applicant and concise statement filed which made allegations of deceit and dishonesty against Premier and Attorney-General of Western Australia in connection with the enactment of the legislation - where trial judge in defamation proceeding became aware of this proceeding and of overlap in factual allegations - where trial judge in defamation proceeding sought to hear from the parties about having one trial of the common factual disputes - where applicant filed notice of discontinuance on same day - where application brought to strike out notice of discontinuance with leave to file a further notice on certain conditions - whether court has jurisdiction to strike out notice of discontinuance - whether filing of notice of discontinuance was an abuse of process - whether orders should be made against non-parties - modified orders made
DOWNES J - 12 August 2022


Migration
DDJ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 943
MIGRATION - appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority; affirming Minister's delegate decision to refuse to grant a protection visa - whether there was an obligation on the part of the Authority to conduct an interview of the appellant - whether the Authority needed to put an updated country report considered in the decision to the appellant for comment - held: appeal dismissed.
BROMWICH J - 12 August 2022


Taxation
King v Commissioner of Taxation [2022] FCA 935
TAXATION - Taxation appeals - Part IVC Taxation Administration Act 1953 (Cth) practice and procedure - consensual resolution of taxation appeals - requirement for explanation for exercise of judicial power
LOGAN J - 12 August 2022


Migration
ELN20 v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2022] FCA 931
MIGRATION - appeal from decision of the Federal Circuit Court to dismiss application for judicial review of a decision to refuse to grant a Protection (subclass 866) visa - whether Administrative Appeals Tribunal acted unreasonably in its consideration of Vietnamese local laws to find that applicant was not stateless - whether error was jurisdictional - appeal allowed - writs of certiorari and mandamus issued
WHEELAHAN J - 12 August 2022


Consumer Law
Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928
CONSUMER LAW - unfair contract terms - where respondent concedes impugned terms unfair - where declarations and orders sought by consent - whether Court has power to make declaration concerning unidentified contracts - where orders provide for corrective advertising, communications to affected customers and implementation of a compliance program - orders made in terms of consent orders
STEWART J - 12 August 2022


Administrative Law
Beckett v Tax Practitioners Board [2022] FCA 930
ADMINISTRATIVE LAW - termination of tax agent registration - appeal from Tribunal's decision affirming decision of the Tax Practitioners Board terminating the applicant's tax agent registration - where Board found applicant is not a "fit and proper" person - where applicant convicted of two offences of using a false document to influence the exercise of a public duty under s 254 of the Crimes Act 1900 (NSW) - where applicant claims Tribunal made incorrect findings as to the nature and identity of the applicant's convictions - where applicant claims Tribunal gave inadequate reasons, denied procedural fairness, and misapplied s 20-45(b) of the Tax Agent Services Act 2009 (Cth) - appeal dismissed
ABRAHAM J - 12 August 2022


Costs ; Corporations Law
Luke v Aveo Group Limited [2022] FCA 925
COSTS - application for security for costs - costs granted
ANDERSON J - 12 August 2022


Mortgages ; Statutory Interpretation
StockCo Agricapital Pty Ltd v Tucki Hills Pty Ltd [2022] FCA 929
MORTGAGES - chattel securities - livestock - recaption - seizure of livestock under s 138C of the Personal Property Securities Act 2009 (PPSA) - where PPSA provides that secured party may enter upon land and take possession of livestock - whether declaration required to authorise acts which would otherwise constitute unlawful trespass - whether question arises as to whether declaration required STATUTORY INTERPRETATION - consideration of relationship between ss 123 and 138C of the PPSA - whether s 138C subject to s 123 restriction of "permitted by law"
STEWART J - 10 August 2022


Costs ; Defamation
Palmer v McGowan (No 6) [2022] FCA 927
COSTS - appropriate award for costs - artificiality in assessing success of claim by reference to only economic considerations - need to assess whether, as a matter of substance, one state of affairs (that provided for by the judgment) is more favourable than another state of affairs (that provided for by the offer) - ultimate question is what is a just cost order in all the circumstances - costs awarded but not on an indemnity basis
LEE J - 11 August 2022


Migration
DQT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 917
MIGRATION -- appeal against dismissal of review of Immigration Assessment Authority's affirmation of refusal of appellant's safe haven visa application -- in interests of justice, leave granted for appellant to raise new grounds not before primary judge -- Authority not bound to consider and resolve potentially competing country information in circumstances -- Authority properly considered risk of appellant facing serious harm if returned to Sri Lanka as failed Tamil asylum seeker -- appeal dismissed
JAGOT J - 11 August 2022


Administrative Law
Australian National Imams Council Limited v Australian Communications and Media Authority [2022] FCA 913
ADMINISTRATIVE LAW -- application for judicial review of decision to renew community broadcasting licence -- where applicant has standing to challenge decision which directly impacts on Muslim community it (in part) represents -- suitability of licensee and superiority of potential competitors not mandatory relevant considerations to renewal -- no incumbency policy in favour of licensee applied -- where duty of procedural fairness only required ACMA to consider submissions by persons with standing -- ACMA not bound to accept submissions of applicant regarding minority viewpoint of radio station -- application dismissed with costs
JAGOT J - 11 August 2022


Migration ; Practice and Procedure
YYZQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 919
MIGRATION -- application for judicial review of decision of the Administrative Tribunal to affirm a decision not to revoke the cancellation of the applicant's bridging visa on character grounds --where some material the applicant had sent to the Department was not placed before the delegate and was emailed to the Tribunal on the morning of the first day of hearing (non-excluded documents), whether the Tribunal denied the applicant procedural fairness by not considering the non-excluded documents -- where the applicant provided other material to the Minister on the first day of the hearing (excluded documents), whether the Tribunal erred by not admitting the excluded documents PRACTICE AND PROCEDURE -- where the originating application was not lodged within the prescribed time under s 477A(1) Migration Act 1958 (Cth) and where the Minister did not oppose an extension of time but the applicant had made no written application for an extension of time, whether the Court may extend the time
KATZMANN J - 11 August 2022


Human Rights
Chadwick v State of New South Wales [2022] FCA 918
HUMAN RIGHTS - where applicant seeks an interim injunction under s 46PO(6) of the Australian Human Rights Commission Act 1986 (Cth) in respect of the termination of a social housing tenancy agreement on eligibility grounds pursuant to s 147 of the Residential Tenancies Act 2010 (NSW) - where for the purpose of the interim injunction application the applicant relies on conduct not the subject of the terminated complaint to the Australian Human Rights Commission relied upon in the substantive proceedings commenced under s 46PO - whether the Court has jurisdiction under s 46PO - whether serious question to be tried - Held: application dismissed
CHEESEMAN J - 10 August 2022


Migration
Wilson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 924
MIGRATION - appeal from decision of the Administrative Appeals Tribunal - where Tribunal affirmed decision of the Minister to cancel the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) - where the factual basis for the Minister's cancellation decision was previously used as a basis for a previous decision to not cancel the applicant's visa - whether the reasoning in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 applies by analogy - application allowed by consent
COLVIN J - 11 FEBRUARY 2022


Migration
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
MIGRATION - appeal from decision of the Administrative Appeals Tribunal - where Tribunal was required by Direction 90 to weigh Australia's non-refoulment obligations in its decision with certain primary considerations - where Tribunal reasoned that the likely prospect of indefinite detention was also to be weighed in that manner - where Minister accepts that Tribunal's approach was irrational or illogical - where orders proposed by consent setting aside Tribunal's decision and remitting the matter for determination according to law - whether Court satisfied that there was error and relief proposed was within jurisdiction - need for reasons despite consent of the parties to proposed orders - application allowed by consent
COLVIN J - 9 August 2022


Practice and Procedure ; Corporations Law
Marundrury v Commonwealth Bank of Australia (No 2) [2022] FCA 916
PRACTICE AND PROCEDURE - application by applicants for leave to amend statement of claim - application by respondent (the Bank) for summary dismissal or strike-out of the applicants' claims - where the applicants' claims were largely based on alleged breaches of s 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) - where the Bank contended: (a) that the applicants had no reasonable prospect of establishing a breach of s 41 of the Act as a result of the operation of s 124 of the Act; and (b) that s 123 of the Act operates to prohibit the Bank from properly defending the allegations in respect of s 41 - whether to grant the applicants leave to amend - whether to summarily dismiss the applicants' claims - held: whole of statement of claim struck out
MOSHINSKY J - 10 AUGUST 2022


Costs ; Jurisdiction
AAL Aviation Limited v Perth Airport Pty Ltd (No 2) [2022] FCA 813
COSTS -- application for indemnity costs arising from respondent's unsuccessful challenge to Court's jurisdiction -- no circumstances justifying indemnity costs -- costs awarded on usual basis
JAGOT J - 14 JULY 2022


Migration
CAM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 923
MIGRATION - appeal from decision of primary judge dismissing application for review of Tribunal's decision confirming dismissal of appellant's application - where appellant failed to attend hearing before Tribunal - where appellant no longer had access to nominated email address - whether Tribunal's inference that appellant must have received notice for purposes of s 426B of the Migration Act 1959 (Cth) legally unreasonable - whether legally unreasonable to rely on previously nominated email address - jurisdictional error established - appeal allowed
HALLEY J - 10 August 2022


Administrative Law ; Negligence
Sil v Commonwealth of Australia [2022] FCA 920
ADMINISTRATIVE LAW - application for judicial review of decision made under Scheme for Compensation for Detriment caused by Defective Administration - whether jurisdiction of Court engaged - whether decision amenable to judicial review ADMINISTRATIVE LAW - whether decision affected by legal unreasonableness and irrationality - whether decision affected by bias or lack of good faith - whether lack of procedural fairness or natural justice - whether decision-maker ignored relevant material - no jurisdictional error NEGLIGENCE - negligent misstatement - complex duty questions not addressed - insufficiency of causation and damages evidence - where visa conditions letter contained misstatement - whether reasonable reliance on misstatement present - whether actual reliance - neither reasonable nor actual reliance established
LEE J - 10 August 2022


Practice and Procedure ; Native Title
Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 915
PRACTICE AND PROCEDURE - application for leave to appeal - where primary judge made an abuse of process finding - where primary judge made orders allowing for the filing and hearing of any costs application if an in-principle agreement was not confirmed - whether the orders of the primary Judge are in the form of case management orders - whether leave should be refused on that basis - leave not refused
COLVIN J - 8 AUGUST 2022


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