Browse Federal Court Judgments

Costs ; Administrative Law
Zirk-Sadowski v University of New South Wales (No 4) [2024] FCA 813
COSTS - application for costs under s 570 of the Fair Work Act 2009 (Cth) - where respondent alleged that the proceeding was instituted without reasonable cause, and the applicant had unreasonably continued proceedings - where applicant was self-represented - where respondent sought costs on an indemnity basis- costs awarded on a party and party basis
ANDERSON J - 26 July 2024

Practice and Procedure ; Industrial Law
Mirabella v Mirabella International Pty Ltd [2024] FCA 820
PRACTICE AND PROCEDURE - interlocutory application for suppression or non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - whether an order is necessary to prevent prejudice to the proper administration of justice - whether an order is necessary to protect the safety of any person - whether court documents and transcript should be marked confidential pursuant to r 2.32(3) of the Federal Court Rules 2011 (Cth).
SNADEN J - 26 July 2024

Practice and Procedure ; Bankruptcy
Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821
PRACTICE AND PROCEDURE - application to disqualify the respondent's legal representatives - summary of legal principles - appellants' evidence inadmissible on the basis they contain bare assertions of a scandalous nature - application dismissed PRACTICE AND PROCEDURE - application for leave to amend the notice of appeal - appellants' submission that the amended notice raises the same issues as the original notice of appeal - prejudice to the respondent if application granted due to late filing of the application to amend - no adequate explanation given for lateness of the application - application dismissed PRACTICE AND PROCEDURE - application to lead fresh evidence on appeal - failure to provide adequate explanation as to why the evidence could not have been, with reasonable diligence, produced prior to the trail before the primary judge - evidence not of the nature that it would have very probably resulted in a different outcome before the trial judge - evidence would blur the distinction between original and appellate jurisdiction - application dismissed BANKRUPTCY - bankruptcy notice issued in respect of a judgment debt arising from a proceeding in the Supreme Court of New South Wales, affirmed on appeal by the NSW Court of Appeal - proceeding before the primary judge seeking to set aside the bankruptcy notice - no error by the primary judge in not accepting that the appellants could not have set up the counterclaims, set offs and/or cross demands in the Supreme Court as required by s 40(1)(g) of the Bankruptcy Act 1966 (Cth) - no error by the primary judge in declining to go behind the judgments of the Supreme Court and the Court of Appeal - appeal dismissed
PERRY J - 26 July 2024

Admiralty ; Contract ; Public International Law
CSL Australia Pty Ltd v Tasmanian Ports Corporation Pty Ltd (The Goliath) [2024] FCA 824
SHIPPING AND NAVIGATION - Convention on Limitation of Liability for Maritime Claims (1976) given the force of law by the Limitation of Liability for Maritime Claims Act 1989 (Cth) - meaning and scope of Arts 2(1)(a) and (d) of the Convention - where vessel allided with two berthed tugs owned by Tasmanian Ports Corporation (TasPorts) - where tugs sank and became wrecks - where TasPorts claims against the owners of the vessel for the costs of the recovery, removal and disposal of the tugs and bunker fuel onboard - whether such "wreck removal" claims are excluded from limitation under Art 2(1)(a) of the Convention by Art 2(1)(d) not being given the force of law in Australia by the exercise of the reservation under Art 18(1) CONTRACTS - whether TasPorts' standard terms and conditions of port access applied to its provision of services in the vessel entering the port - whether the exclusion "[t]o the fullest extent permitted by Law [of] all rights, ... remedies or other terms that are not set out" excludes the owners' right to limit liability in reliance of the Convention on Limitation of Liability for Maritime Claims (1976) PUBLIC INTERNATIONAL LAW - proper approach to the interpretation of treaties - Vienna Convention on the Law of Treaties (1969) - recourse to preparatory work and circumstances of conclusion
STEWART J - 26 July 2024

Corporations Law
Australian Securities and Investments Commission v NGS Crypto Pty Ltd (No 3) [2024] FCA 822
CORPORATIONS - previous ex parte orders appointing receivers - previous ex parte freezing orders - defendants conducted business in Australia and overseas - funds invested in cryptocurrency assets - whether Court should rescind and discharge orders appointing receivers and freezing orders - whether duty of candour discharged by Australian Securities and Investments Commission when ex parte orders sought - whether orders had sound jurisdictional basis - whether cryptocurrency constituted "property" for purposes of interlocutory application
COLLIER J - 25 July 2024

Human Rights
Snell v State of Victoria (Department of Education and Training) (No 3) [2024] FCA 825
HUMAN RIGHTS - application by litigation representative for approval of settlement - where claims concern allegations of disability discrimination in education under the Disability Discrimination Act 1992 (Cth) and associated claims under the Wrongs Act 1958 (Vic) - whether application is accompanied by an opinion of an independent lawyer - whether appropriate to make confidentiality orders - whether settlement is in the applicant's best interests - consideration of relevant factors for approval of settlement - settlement approved
HORAN J - 25 July 2024

Practice and Procedure ; Corporations Law
INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 2) [2024] FCA 815
PRACTICE AND PROCEDURE - application to inspect documents produced in response to notice to produce issued to applicants - inspection resisted on basis communications in documents subject to legal professional privilege - communications to scientists from firm of lawyers engaged in separate proceedings - some factual overlap in proceedings - where scientists have provided expert reports in these proceedings answering questions from applicants' lawyers - whether implied waiver of privilege upon service of expert reports - waiver not established
BANKS-SMITH J - 24 July 2024

Bankruptcy
El-Hanania v Cull [2024] FCA 814
BANKRUPTCY AND INSOLVENCY - where applicant (an undischarged bankrupt) seeks trustees' consent to travel overseas - where trustees refused consent - whether Court should direct trustees to give consent
KATZMANN J - 24 July 2024

Practice and Procedure ; Industrial Law
Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818
PRACTICE AND PROCEDURE - application by the first respondent for the documents on the Court file to be ordered confidential - where the respondents have not filed their pleadings and have brought a strike out application - where the parties have settled the proceedings - whether such orders are necessary to prevent prejudice to the proper administration of justice - application allowed
RAPER J - 25 July 2024

Representative Proceedings ; Evidence ; Practice and Procedure
McNickle v Huntsman Chemical Company Australia Pty Ltd (Initial Trial) [2024] FCA 807
REPRESENTATIVE PROCEEDINGS - class action concerning the alleged carcinogenic effects of Roundup produced by the Monsanto Company - initial trial of common questions - general causation - whether use of or exposure to Roundup products which contained glyphosate increases risk of developing non-Hodgkin lymphoma (NHL) - where ten expert conclaves ordered - where three streams of scientific evidence - epidemiological stream - animal studies stream - mechanistic evidence stream - where evidence as a whole does not establish that use and/or exposure to Roundup Products which contain glyphosate cause NHL in humans - wisps of smoke but no fire on the evidence adduced - central common question framed and answered - orders made EVIDENCE - proper approach to fact finding - s 140 of the Evidence Act 1995 (Cth) - where all evidence was expert or documentary - evidence of general causation - onus of proof - observations as to "weight of evidence" approach - assessing the whole of the evidence - proper approach to evidence of scientific articles and studies - Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling) [2022] FCA 1318 - where agreed position as to admissibility -opinions to be assessed on their merits EVIDENCE - expert evidence - "hired guns" - credibility findings - where allegations that various expert witnesses were not independent - Expert Evidence Practice Note (GPN-EXPT) - where unnecessary credit findings should be avoided - where Court's task is to reason its conclusions on the basis of contemporary materials - where allegations of partisanship liable to distract from substantive merits of scientific materials EVIDENCE - Jones v Dunkel inferences - where Monsanto made forensic decision not to call expert witness in conclave - relevant principles - where inference cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference PRACTICE AND PROCEDURE - Merck orders - identification of issues the subject of order under s 33ZB of the Federal Court of Australia Act 1976 (Cth) - whether it is necessary or appropriate to answer questions as initially framed - form of question - central common question framed and answered
LEE J - 25 JULY 2024

Migration
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 816
MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) affirming a delegate of the Minister's decision not to revoke the applicant's mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) (Act) - grounds of review - whether the Tribunal misapplied or misunderstood Direction 99 - where Tribunal attributed negative weight to consideration of the extent of impediments if applicant were to be removed from Australia - whether the error was material - consideration of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 - whether the Tribunal failed to consider substantial, clearly articulated arguments on impediments applicant would face if returned to Nepal - whether the Tribunal denied applicant procedural fairness by preventing him from making submissions - application allowed on first ground of review
HALLEY J - 25 July 2024

Bankruptcy
Official Receiver, in the matter of Mottershead [2024] FCA 823
BANKRUPTCY - referral of debtor's petitions against a partnership for directions under s 56C(1)(b) and s 56C(3) of the Bankruptcy Act 1966 (Cth) - consideration of principles applicable for specifying the time for commencement of the bankruptcy under s 56C(5) of the Bankruptcy Act
FEUTRILL J - 3 July 2024

Practice and Procedure ; Equity
East Rockingham RRF Project Co Pty Ltd as Trustee for the East Rockingham RRF Project Trust v Acciona Construction Australia Pty Ltd [2024] 759
PRACTICE AND PROCEDURE - summary judgment - strike out - suppression and non-publication - concise statement method - mandatory interlocutory injunction - without prejudice privilege EQUITY - mandatory injunction for performance or specific performance of a contractual term - adequacy of damages - readiness and willingness - dependency of obligations - discretionary considerations for equitable relief
FEUTRILL J - 12 July 2024

Workers' Compensation
Moradi v Comcare [2024] FCA 812
WORKERS' COMPENSATION - "Injury" - interpreter deployed to Nauru - deployment terminated prematurely - whether liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether Comcare can rely on the reasonable administrative action defence in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - appeal dismissed with costs.
MCEVOY J - 24 July 2024

Practice and Procedure ; Telecommunications
Australian Communications and Media Authority v V Marketing Australia Pty Ltd (in Liq) (No 3) [2024] FCA 817
PRACTICE AND PROCEDURE - application for leave to amend defence - r 16.53 Federal Court Rules 2011 (Cth) - where application involves leave to withdraw an admission - principles of amendment of pleadings - s 37M Federal Court of Australia Act 1976 (Cth) - allocation of Court time
LOGAN J - 16 JULY 2024

Industrial Law
Fair Work Ombudsman v Doll House Training Pty Ltd (No 2) [2024] FCA 811
INDUSTRIAL LAW - application for declaratory relief and pecuniary penalties for contraventions of ss 323(1), 357, 358 and 712(3) of the Fair Work Act 2009 (Cth) - where an employer employed three workers with disabilities, later terminated their employment and required them to sign an "Independent Contractor Agreement" - two of the three workers signed the "Independent Contractor Agreement" - whether workers were then independent contractors or employees - held to be employees - where employer failed to pay the employees at all during the period of their employment - where the employer failed to comply with a notice to produce documents issued by a Fair Work Inspector - contraventions proven - appropriate level of penalties to be imposed
GOODMAN J - 24 July 2024

Corporations Law
Alumina Limited, in the matter of Alumina Limited [2024] FCA 806
CORPORATIONS - scheme of arrangement - scheme concerning acquisition of shares - second court hearing - where s 411(4) of the Corporations Act 2001 (Cth) satisfied - US Securities Act of 1933 (US) exemption - approval granted - orders for approval of scheme and exemption from requirement in s 411(11) of the Corporations Act 2001 (Cth)
MCELWAINE J - 22 July 2024

Industrial Law
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803
INDUSTRIAL LAW - alleged contraventions of s 501 and s 502 of the Fair Work Act 2009 (Cth) in refusing entry to a union official - whether agreed penalty falls within range of possible appropriate penalties for the conduct - whether payment of penalty ought to be directed to the union - consideration of factors relevant to the determination of penalty - held agreed penalty is within range - orders made in terms sought
COLVIN J - 23 July 2024

Practice and Procedure ; Discrimination
Bishnoi v Star Track Express Pty Ltd [2024] FCA 808
PRACTICE AND PROCEDURE - summary judgment application - strike out application - whether there are reasonable prospects of success - real questions of law and fact that should be decided at trial
NESKOVCIN J - 24 July 2024

Migration
SZVUI v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 809
MIGRATION - application for judicial review of decision refusing visa application - decision made personally under s 501(1) of the Migration Act 1958 (Cth) - whether applicant was denied procedural fairness - whether applicant put on notice of a conclusion that child marriage violates the rights of children under international law or laws - applicant not put on notice - whether that finding was a critical issue on which the decision turned or sufficiently important as to warrant providing an opportunity to be heard - finding not an issue on which the decision turned or sufficiently important - no denial of procedural fairness MIGRATION - whether Minister overlooked relevant material when finding the applicant had not shown remorse - whether Minister overlooked relevant material when finding that there was no evidence that the applicant had engaged with Mental Health Services - whether Minister overlooked relevant material when finding that the applicant had not engaged with rehabilitation courses in prison - Minister did not overlook material MIGRATION - whether remorse or rehabilitation findings illogical or irrational - reasoning on remorse and rehabilitation not illogical or irrational - application dismissed
THAWLEY J - 23 July 2024

Industrial Law ; Costs
McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810
INDUSTRIAL LAW - interlocutory application for dismissal of proceedings against second respondent for want of jurisdiction - litigant in person - where second respondent not named in proceedings before Fair Work Commission - where second respondent not named in s 368 certificate - whether jurisdiction of the Court enlivened under section 370 of Fair Work Act 2009 (Cth) COSTS - where proceeding against second respondent for want of jurisdiction - no costs jurisdiction - whether s 570(2)(b) of Fair Work Act enlivened - whether failure to name the second respondent in proceedings before the Fair Work Commission and subsequently bringing proceedings against the second respondent in the Federal Court of Australia pursuant to s 370 of Fair Work Act was an "unreasonable act or omission" for the purposes of s 570 - meaning of "dispute" in s 370 of Fair Work Act - costs not awarded
COLLIER J - 23 July 2024

Human Rights ; Privilege
Rindeklev v Comcare [2024] FCA 804
HUMAN RIGHTS - application for leave to advance claim of unlawful discrimination under s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) - where complaint alleged respondent's conduct (in filing witness statement containing statements offensive to applicant in Administrative Appeal Tribunal proceedings) amounted to sexual harassment in contravention of the Sex Discrimination Act 1983 (Cth) - where complaint to Australian Human Rights Commission terminated for being misconceived or lacking substance - consideration of matters relevant to Court's discretion to grant leave - consideration of merits of applicant's claim - held impugned conduct could not satisfy statutory definition of sexual harassment - held applicant's claim not arguable - leave refused PRIVILEGE - witness immunity - where respondent raised witness immunity as defence to applicant's claim - consideration of merits of that defence
COLVIN J - 23 July 2024

Industrial Law
Hempel (Wattyl) Australia Pty Ltd v United Workers Union [2024] FCAFC 98
INDUSTRIAL LAW - appeal from South Australian Employment Court - where primary judge found that employer contravened s 50 of the Fair Work Act 2009 (Cth) by failing to pay employees their wages and entitlements in accordance with enterprise agreements - where primary judge found that employees were appropriately classified at higher level - whether primary judge erred in holding that the employer wrongly classified and paid employees at lower level - interpretation of classification criteria - whether employees' duties correspond to criteria - appeal allowed
RANGIAH, SNADEN AND ABRAHAM JJ - 22 JULY 2024

Industrial Law
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805
INDUSTRIAL LAW - termination of employment - interlocutory application for reinstatement - whether prima facie case is sufficiently strong - whether balance of convenience favours grant of interlocutory relief - application for interlocutory relief dismissed
THAWLEY J - 18 JULY 2024

Administrative Law
McGary v Australian National University [2024] FCA 800
ADMINISTRATIVE LAW - judicial review - review by Appeals Committee of disciplinary decision made by nominee of Vice Chancellor - scope of review - whether review by Appeals Committee de novo review - whether Appeals Committee erred by limiting review to the grounds on which review sought
KATZMANN J - 19 JULY 2024

Migration
Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802
MIGRATION - application for extension of time to bring an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to revoke the cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth) - whether necessary in interests of justice to grant extension - extension of time granted MIGRATION - application for judicial review - whether Tribunal overlooked a clearly articulated submission with respect to the impact of the visa cancellation on Australian business interests - whether Tribunal failed to consider impact of the visa cancellation on Australian business interests - whether applicant was denied procedural fairness in failing to inform the applicant of his right to invoke the privilege against self-incrimination in relation to questions asked by the Tribunal and the respondent -Tribunal overlooked clearly articulated submission - not necessary to determine whether denial of procedural fairness - application allowed
THAWLEY J - 19 July 2024

Corporations Law
Morelli (liquidator), in the matter of FW Projects Pty Limited (in liq) v White Hills Pty Limited [2024] FCA 789
CORPORATIONS - application for judicial advice pursuant to s 90-15 and s 90-20 of the Insolvency Practice Schedule (Corporations) in Sch 2 of the Corporations Act 2001 (Cth) as to the treatment of levies issued by a strata building management committee that arose after the company went into liquidation and receivers appointed over real property assets the company held as trustee (strata levies) - whether the plaintiffs as liquidators or receivers of trust assets are required to pay the strata levies in full and in priority to all other unsecured creditors or pari passu with other unsecured creditors - whether the contract for the sale of land entered into between the plaintiffs and the defendant gave rise to an obligation to pay the strata levies - whether the plaintiffs adopted or accepted liability to pay the strata levies pursuant to a strata management statement - whether the plaintiffs adopted or accepted liability to pay the strata levies by arranging for rectification works to be undertaken to enable the completion of development of real property assets prior to sale - whether the Lundy Granite principle applies to receivership by analogy or extension of the previous application of that equitable principle - entry into contract of sale and subsequent lease did not give rise to obligation to pay the strata levies - the Lundy Granite principle applied to the plaintiffs in their capacity as receivers - plaintiffs adopted the strata management statement and thereby liability to pay the strata levies as debts incurred by the plaintiff in their capacity as receivers - judicial advice given
HALLEY J - 19 July 2024