Browse Federal Court Judgments

Costs ; Administrative Law
Conway (a pseudonym) v Secretary, Department of Home Affairs [2024] FCA 1348
COSTS - where applicant sought mandamus compelling performance of duty to decide application for visa - where applicant sought habeas corpus - where applicant granted a visa and released from detention, rendering applications moot - where applicant seeks costs - where respondent say claim for habeas corpus bound to fail - when parties may request reasons for a decision from the Court - "rough and ready" approach to costs adopted
KENNETT J - 21 November 2024

Administrative Law
Rindeklev v Comcare (No 2) [2024] FCA 1349

COLVIN J - 21 November 2024

Bankruptcy
Council of the Law Society of the Australian Capital Territory v Ezekiel-Hart, in the matter of Ezekiel-Hart [2024] FCA 1341
BANKRUPTCY AND INSOLVENCY - creditor's petition for a sequestration order - leave granted to amend defect or irregularity in the creditor's petition where no injustice has been caused by the defect or irregularity - debtor failed to comply with bankruptcy notice - act of bankruptcy committed - respondent debtor's evidence inadequate to establish that he is able to pay his debts so as to satisfy s 52(2)(a) of the Bankruptcy Act 1966 (Cth) - respondent failed to establish that for other sufficient cause, the sequestration order ought not to be made for the purposes of s 52(2)(b) of the Bankruptcy Act 1966 (Cth) - sequestration order made.
PERRY J - 21 November 2024

Migration
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1342
MIGRATION - application for leave to appeal decision of the Federal Circuit and Family Court of Australia (Division 2) - where visa application was not accompanied by evidence that the Applicant achieved minimum language test requirements
HESPE J - 21 November 2024

Practice and Procedure ; Corporations Law
The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345
PRACTICE AND PROCEDURE - discontinuation of proceeding - where respondent does not consent -application for leave pursuant to r 26.12(2)(c) of the Federal Court Rules 2011 (Cth) - where applicant agrees to pay respondent's costs of the proceeding and not to recover its own costs from the bankrupt estate - where respondent nevertheless seeks determination of extant interlocutory application PRACTICE AND PROCEDURE - application for disqualification of judge on the basis of apprehended bias -where respondent has already raised claims of procedural unfairness in primary hearing on appeal - where leave to appeal refused - whether logical connection between factor discerned to be of concern to the respondent and the determination of the application for leave to discontinue the proceeding against the respondent
SARAH C DERRINGTON J - 12 November 2024

Costs ; Corporations Law
Masters v Lombe (liquidator), in the matter of Babcock & Brown Limited (in liq) (Lump Sum Costs) [2024] FCA 1336
COSTS - applications for lump sum determinations -where existing costs orders made in a suite of related primary and appeal proceedings - where primary judge retired - where application for lump sum determination made after special leave applications dismissed - whether orders should be made for lump sum determinations in respect of existing cost orders -
CHEESEMAN J - 21 November 2024

Practice and Procedure ; Corporations Law
Pain v Lombe (liquidator), in the matter of Babcock & Brown Ltd (in liq) [2024] FCA 1338
PRACTICE AND PROCEDURE - application for permanent stay of proceeding - abuse of process - Babcock & Brown liquidation - where litigation funder instituted proceeding substantially on same facts and causes of action as other proceedings it had also funded and pursued unsuccessfully - whether relevant connection or sufficient identification between applicants in this proceeding and applicants in other proceedings - whether unreasonable for applicants not to have brought their claims in earlier proceedings - proceeding permanently stayed as an abuse of process
HALLEY J - 21 November 2024

Patents
Zoetis Services LLC v Boehringer Ingelheim Animal Health USA Inc [2024] FCAFC 145
PATENTS - patents for supernatant vaccine against diseases affecting pigs PATENTS - validity - best method - where antigen concentrations of vaccine disclosed as a range - whether antigen concentrations material to the advantages claimed of the invention - consideration of Firebelt Pty Ltd v Brambles Australia Ltd [2000] FCA 1689; 51 IPR 531 - role of good faith in best method requirement PATENTS - validity - inventive step - whether administration of vaccine in a single dose involved an inventive step - where single dose combination vaccine already commercially available at priority date - whether routine tests determine dosage
PERRAM, NICHOLAS AND DOWNES JJ - 15 NOVEMBER 2024

Australian Securities and Investments Commission v Pattenden [2024] FCA 1331
PRACTICE AND PROCEDURE - application to strike out paragraphs of amended statement of claim (ASOC) - application for plaintiff to serve particulars of paragraphs of ASOC - where contraventions alleged in ASOC are pleaded in a "rolled up" way - where allegations in pleading cover periods outside the defined relevant period
KENNETT J - 19 November 2024

Bankruptcy
Scott v Nimlaw Pty Ltd (No 2) [2024] FCA 1330
BANKRUPTCY -- appeal of decision from Federal Circuit and Family Court of Australia (Division 2) dismissing an application for review of a registrar's decision to make a sequestration order --appeal dismissed
O'SULLIVAN J - 19 November 2024

Migration
DLS21 v Minister for Immigration and Multicultural Affairs [2024] FCA 1337
MIGRATION - application for extension of time and leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) - where Applicant did not appear at the hearing - application for dismissal made under r 35.33
HESPE J - 18 November 2024

Practice and Procedure ; Trade Marks
Hugo Boss AG v Hardge [2024] FCA 1325
PRACTICE AND PROCEDURE - application for default judgment pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) - where substituted service orders made - where respondent in default of appearance - allegations of trade mark infringement, misleading and deceptive conduct and passing off - whether the applicant is entitled to relief - relief granted
NESKOVCIN J - 19 November 2024

Administrative Law
Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314
ADMINISTRATIVE LAW - judicial review - application by unregistered National Disability Insurance Scheme provider pursuant to ss 5(1)(c), (d), (e) and (j) and 6(1)(c), (d), (e) and (j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review in respect of the respondent's failure to make payments to the applicant under s 45 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) - alternative claim for an order of review in respect of the respondent's request for information to support the applicant's payment claims under s 45 of the NDIS Act - alternative claim for restitutionary relief on a quantum meruit basis for supports and other services provided to participants under the NDIS Act - application dismissed
NESKOVCIN J - 19 November 2024

Patents
EIS GmbH v LELO Oceania Pty Ltd (Expert Evidence) [2024] FCA 1334
PATENTS - invalidity - affidavits of witness filed by party which do not comply with rule 23.13 Federal Court Rules 2011 (Cth) - affidavits sought to be relied upon as expert evidence in invalidity case for purposes of having witness participate in expert conclaves to be held in next fortnight - independence of witness challenged - both parties have existing independent expert witnesses who will participate in conclaves - witness excluded from expert conclaves - whether party can rely upon evidence of witness as expert evidence deferred to trial
DOWNES J - 19 NOVEMBER 2024

Practice and Procedure ; Industrial Law
Dyball v Brookfield Properties Australia Pty Ltd [2024] FCA 1335
PRACTICE AND PROCEDURE - application to strike out paragraphs of concise statement - whether material scandalous, vexatious or frivolous or abuse of process - application for suppression and non-publication orders - public interest in open justice
FEUTRILL J - 31 OCTOBER 2024

Industrial Law ; Practice and Procedure
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324
INDUSTRIAL LAW - interlocutory application for summary dismissal of proceedings against third respondent for want of jurisdiction - where two employees were dismissed from employment by first respondent - where s 370 of Fair Work Act 2009 (Cth) (FW Act) imposes alternative preconditions to the making of applications alleging dismissal in contravention of general protections provisions - where one alternative is if the application to the court includes an application for an interim injunction - where general protections court application brought against two respondents and included application for interim injunction - where interim injunction dismissed before third respondent joined to proceedings - whether general protections court application includes application for interim injunction - where third respondent alleged to have been involved in dismissal and also to have engaged in contravening conduct other than dismissal - whether jurisdiction of Court enlivened under section 370(b) of FW Act PRACTICE AND PROCEDURE - where applicants filed amended originating application joining additional respondent before any pleadings filed - whether leave of Court required - whether leave should be granted
KATZMANN J - 19 NOVEMBER 2024

Costs ; Corporations Law
Bist v Cyan Stone Clydesdale Estate 1 Pty Ltd (No 2) [2024] FCA 1332
COSTS - where applicants applied unsuccessfully for an interlocutory injunction - where respondents seek their costs of the interlocutory injunction application on the indemnity basis - where matter subsequently allocated to a docket judge - whether applicants should have known that they had no chance of success in obtaining an interlocutory injunction - whether applicants unreasonably rejected an offer of compromise - application for indemnity costs rejected COSTS - where respondents seek that their costs of the interlocutory injunction application be payable forthwith - whether to depart from the usual position under r 40.13 of the Federal Court Rules 2011 (Cth) that if an order for costs is made on an interlocutory application the party in whose favour the order is made must not tax those costs until the proceeding is finished - application dismissed
JACKMAN J - 19 November 2024

Corporations Law
Tucker (Administrator), in the matter of True North Copper Limited (Administrators Appointed) [2024] FCA 1329
CORPORATIONS - administration - application for modification of operation of s 443A under s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations) - where holding company of a group of entities - where funding necessary to ensure that group of companies may pay debts and continue to trade during administration pending dual-track sale and recapitalisation process - funding agreement secured - application to limit the liability of administrators under funding agreement to the extent cash and assets of the companies insufficient to satisfy debts and liabilities - where not appropriate that administrators incur personal liability for repayment of debts or satisfaction of liabilities arising under funding agreement - application granted CORPORATIONS - administration - application for directions under s 90-15 of the Insolvency Practice Schedule (Corporations) as to whether the administrators were justified in entering into the proposed funding agreement - where propo
BANKS-SMITH J - 13 November 2024

Practice and Procedure ; Consumer Law
Tay v Chong [2024] FCA 1327
PRACTICE AND PROCEDURE - application to strike out paragraphs of defence - reasons as provided in related judgment, Yap v Chong [2024] FCA 1326 - leave granted to replead
COLVIN J - 18 November 2024

Practice and Procedure ; Costs ; Consumer Law
Yap v Chong [2024] FCA 1326
PRACTICE AND PROCEDURE - application to strike out paragraphs of defence - where defence contains repeated pleas that 'respondents will plead in response to the allegations ... upon provision of proper particulars thereof' - where no further particulars sought - whether defence evasive or ambiguous - paragraphs of defence struck out - leave granted to replead COSTS - whether costs should be ordered to be paid forthwith - consideration of principles - costs ordered to be paid forthwith
COLVIN J - 18 November 2024

Migration
BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1317
MIGRATION - appeal from Federal Circuit and Family Court of Australia (Div 2) - where Administrative Appeals Tribunal (Tribunal) affirmed a decision of the delegate of the Minister refusing to grant the appellant a protection visa - where court below dismissed an application for judicial review - appeal by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) - whether Tribunal failed to consider appellant's claim to fear harm for reasons of his mixed Hutu-Tutsi ethnicity - whether Tribunal failed to consider appellant's claim to fear harm due to imputed wealth - whether Tribunal failed to consider appellant's claim to fear harm due to his criminal record in Australia - appeal dismissed
O'BRYAN J - 18 NOVEMBER 2024

Practice and Procedure ; Costs ; Corporations Law
Frigger v Professional Services of Australia Pty Ltd (No 6) [2024] FCA 1320
PRACTICE AND PROCEDURE - application to reopen security for costs orders - dismissal of proceeding following determination of separate questions COSTS - liability for legal costs - consideration of indemnity principle - costs awarded on a lump sum basis
FEUTRILL J - 15 NOVEMBER 2024

Migration
IXW24 v Commonwealth of Australia [2024] FCA 1328
MIGRATION - application for interlocutory relief to restrain the Commonwealth from continuing to detain the applicant until the determination of his claim for habeas corpus - where interlocutory relief sought on specified conditions in relation to the applicant's residence, curfew and reporting obligations - whether the Court has power to order the release on an interlocutory basis of a person detained as a result of the cancellation of his or her visa on character grounds - where s 196(4) of the Migration Act 1958 (Cth) requires detention to continue unless a court finally determines that detention is unlawful or person detained is not an unlawful non-citizen - whether balance of convenience favours the grant of interlocutory relief - application dismissed
HORAN J - 15 NOVEMBER 2024

Migration
JLW24 v Minister for Immigration and Multicultural Affairs [2024] FCA 1319
MIGRATION - judicial review application of adverse security assessment made by the Director-General of Security for the purposes of a decision by the Minister for Immigration and Multicultural Affairs to cancel the applicant's visa under s 128 of the Migration Act 1958 (Cth) - content of the Director-General's duty to afford the applicant procedural fairness - where applicant had been located in Gaza - where the applicant was not afforded an opportunity to be heard on the adverse security assessment - consequences of public interest immunity for the principle in Blatch v Archer and evidential onus - whether the Director-General had a duty to invite the applicant for an interview in the Australian Embassy in Cairo or in Australia
PERRY J - 15 November 2024

Administrative Law
Taylor v Director Ministerial Intervention (National) [2024] FCA 1322
ADMINISTRATIVE LAW- application to quash a decision not to refer an application for consideration by the Minister pursuant to s 195A of the Migration Act 1958-where applicant removed to the United Kingdom after non-referral decision was made -application for substantive relief rendered moot-whether declaratory relief should be withheld on discretionary grounds where no other purpose would be served-declaration refused-proceeding dismissed.
MCELWAINE J - 12 November 2024

Corporations Law
Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 4) [2024] FCA 1316
CORPORATIONS - external administration of a group of companies - application by administrators for directions under s 90-15 of Sch 2 to the Corporations Act 2001 (Cth) - issue of construction of pre-emption rights clauses in joint venture agreement - where direction opposed on various bases - direction made
DERRINGTON J - 15 November 2024

Administrative Law ; Practice and Procedure
Di Paolo v Secretary, Department of Social Services [2024] FCA 1313
ADMINISTRATIVE LAW - appeal from decision of the Administrative Appeals Tribunal (Tribunal) setting aside decision of the Tribunal's Social Services and Child Support Division regarding the Applicant's social security entitlements - whether Tribunal erred in relation to the standard of proof - whether Tribunal erred in its application of the evidential onus of proof - whether Tribunal misunderstood or misapplied s 41 of the Trustee Act 1958 (Vic) - whether Tribunal failed to perform its irreducible jurisdictional task or afford the Applicant procedural fairness - whether Tribunal acted unreasonably or irrationally - whether Applicant failed to comply with s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) - where appeal commenced under s 44 of the AAT Act to proceed under the Administrative Review Tribunal Act 2024 (Cth) - appeal dismissed PRACTICE AND PROCEDURE - Application for an extension of time to file cross-appeal from the decision of the Tribunal - where no adequate explanation pro
BUTTON J - 15 November 2024

Industrial Law ; Practice and Procedure
Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323
INDUSTRIAL LAW - appeal from decision of Federal Circuit and Family Court of Australia (FCFCOA) in which primary judge found appellant liable for wrongful termination, adverse action contrary to s 340(1) of Fair Work Act 2009 (Cth) (FW Act) and a contravention of s 117(1) of FW Act - where appellant had summarily terminated employment of respondent for alleged serious misconduct arising from incident at after-hours gathering of work colleagues and subsequent investigation of incident - where primary judge found that appellant had not established serious misconduct on part of respondent - where primary judge found that respondent had exercised certain workplace rights and appellant failed to rebut presumption in s 361 of FW Act that appellant had terminated respondent's employment "because of" exercise of those rights - where primary judge found that appellant had contravened s 117(1) of FW Act by failing to give respondent notice of termination in authorised manner - consideration of principles of appellate review and remitter - whether primary judge erred in making various findings of fact, including that person identified by appellant as having made decision to dismiss respondent was not, in fact, person who made that decision; and that, where person who primary judge found had made decision to dismiss respondent was not called to give evidence, appellant had failed to rebut presumption in s 361 of FW Act - HELD: majority of alleged factual errors rejected; however, primary judge erred in specified respects; questions as to who was materially involved in decision to terminate respondent's employment and whether presumption in s 361 of FW Act rebutted to be remitted to different judge of FCFCOA - whether primary judge erred in deciding that respondent had not engaged in serious misconduct warranting summary dismissal - HELD: primary judge did not so err - whether primary judge erred in deciding that appellant took adverse action against respondent because it failed to call as witness person who primary judge determined had made decision to dismiss respondent - HELD: this question to be dealt with on remitter - whether primary judge erred in finding that appellant had contravened s 117(1) in way notice of termination was given to respondent - HELD: primary judge did not err in way contended for by appellant, but serious doubt expressed about correctness of finding of contravention for other reasons not advanced in appeal - whether primary judge denied appellant procedural fairness in proceedings below, including by reason of delay between proceedings and delivery of primary judgment - HELD: no denial of procedural fairness PRACTICE AND PROCEDURE - where outcome of appeal in large measure turned on forensic choices made by appellant in way it conducted proceedings below and on appeal - where no witnesses of fact to incident called other than respondent - where witness accounts and investigation report concerning incident tendered for non-hearsay purpose and relied upon for both hearsay and non-hearsay purposes - where appellant primarily relied on audio recording of part of incident - where appellant failed to engage with other substantial evidence in witness accounts which shed light on context in which incident occurred - where appellant alleged that respondent had engaged in conduct that was deliberately dishonest - where appellant failed to make out its case as to serious misconduct as pleaded and run in proceedings below PRACTICE AND PROCEDURE - application of Practice Note APP 2: Content of Appeal Books and Preparation for Hearing - expectations of parties in relation to compilation of Appeal Books
SHARIFF J - 15 November 2024

Patents
Cytec Industries Inc. v Nalco Company (No 4) [2024] FCA 1318
PATENTS - application to amend patent application following determination of appeal under s 60(4) of the Patents Act 1990 (Cth) - whether proposed amendments allowable under s 102 of the Patents Act - application refused PATENTS - whether proposed amendments overcome deficiencies identified on appeal from opposition proceedings - lack of support - lack of clear and complete description PATENTS - claim construction - whether claims include within their scope a reaction product mixture containing only the named small molecules
BURLEY J - 15 NOVEMBER 2024

Costs ; Corporations Law
Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda (No 3) [2024] FCA 1315
COSTS - application for costs orders to be taxed immediately - order made
DERRINGTON J - 15 November 2024

Corporations Law
Realtek Semiconductor Corporation v Jones (Administrator) [2024] FCA 1321
CORPORATIONS - application for order pursuant to s 588FM of the Corporations Act 2001 (Cth) - security interest in assets, rights and property of company - failure to register collateral due to inadvertence - prejudice to unsecured creditors
FEUTRILL J - 22 October 2024