Browse Federal Court Judgments

Practice and Procedure ; Bankruptcy
Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 7) [2024] FCA 1068
PRACTICE AND PROCEDURE - interlocutory application for the enforcement of orders and declarations made previously - scope of liberty to apply - where application is within scope of liberty to apply - where equitable right of exoneration applies in applicant's favour - where defence of laches raised - application granted
MARKOVIC J - 17 September 2024

Migration
CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1046
MIGRATION - appeal from decision of the Federal Circuit Court of Australia dismissing review of fast track reviewable decision of Immigration Assessment Authority - where Authority affirmed decision of the delegate of the Minister to refuse the grant of a protection visa - where the appellants claim Authority acted legally unreasonably in rejecting claims of abuse made by the first appellant - whether Authority unreasonably found inconsistencies in the first appellant's evidence - whether Authority misinterpreted the first appellant's evidence - where the appellants claim the Authority acted unreasonably in failing to consider interviewing the first appellant about the abuse claims pursuant to s 473DC of the Migration Act 1958 (Cth) - whether Authority's reasons or communication with the first appellant disclose consideration of its power in s 473DC - whether primary judge erred in failing to find that the Authority's decision was legally unreasonable - appeal dismissed
BANKS-SMITH J - 12 September 2024

Practice and Procedure ; Administrative Law
AWX24 v Australian National University (Separate Question) [2024] FCA 1075
PRACTICE AND PROCEDURE - separate question stated for resolution prior to final hearing - whether hearing should proceed in the light of concessions made by respondent as to jurisdictional error ADMINISTRATIVE LAW - statutory disciplinary process of university - where legislation governing disciplinary process provides for appeal - where jurisdictional error in appellate decision conceded by respondent - where court has discretion whether to grant relief - where the Federal Court has issued decision in McGary v Australian National University [2024] FCA 800 (McGary) on the proper task of the appellate decision maker under the relevant statutory scheme - where respondent appealing that decision to Full Court - where respondent does not concede McGary-style jurisdictional error in present proceeding, but concedes it is open to court to find a McGary-style jurisdictional error in present proceeding - whether court should proceed to review initial disciplinary decision - whether statutory appeal process sufficient remedy for error at first instance - whether matter should be referred back to statutory appeal process - whether respondent can maintain submission that statutory appeal process sufficient while contesting the content of that appeal process before the Court in other proceedings ADMINISTRATIVE LAW - where respondent concedes one jurisdictional error in decision under review and consents to relief in the form of certiorari - where applicant wishes to press claim for certiorari on other grounds of judicial review - whether court should proceed to hear claim for certiorari on other grounds
KENNETT J - 17 September 2024

Industrial Law ; Practice and Procedure
Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074
INDUSTRIAL LAW - where applicant summarily dismissed from his employment for serious misconduct - where applicant seeks interim order for reinstatement pursuant to s 545 of Fair Work Act 2009 (Cth) ("FW Act") - whether applicant demonstrated a prima facie case of contravention of s 340 of FW Act - whether timing of decision to summarily terminate respondent by applicant influenced by respondent's desire to deny applicant opportunity to make a claim for unfair dismissal under Part 3-2 of the FW Act - whether balance of convenience favoured making of interim order for reinstatement PRACTICE AND PROCEDURE - whether interim order for reinstatement pursuant to s 545 of FW Act should be made Held: interim order reinstatement made
NICHOLAS J - 17 September 2024

Corporations Law
Elvin v Fair Work Ombudsman (No 2) [2024] FCA 1072
CORPORATIONS - whether to grant leave under s 500(2) of the Corporations Act 2001 (Cth) to commence and proceed against a company in voluntary administration - considering general deterrence and public policy where leave sought by regulator - leave granted
COLLIER J - 16 September 2024

Practice and Procedure ; Corporations Law
Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071
PRACTICE AND PROCEDURE - whether order to stay proceedings under judgment subject to appeal - s 29 Federal Court of Australia Act 1976 (Cth) and r 36.08 Federal Court Rules 2011 (Cth) - balance of convenience - whether serious questions for determination in appeal - interests of justice - partial stay of proceedings ordered
COLLIER J - 16 September 2024

Costs ; Bankruptcy
Djunaedi v Mohor, in the matter of Mohor [2024] FCA 1073
COSTS - whether lump sum costs order should be made - whether evidence meets requisite level of detail - requirement that costs determination be fair, logical, and reasonable - lump sum costs order appropriate - assessment of quantum referred to Registrar of Court as referee - s 54A Federal Court of Australia Act 1976 (Cth)
COLLIER J - 16 September 2024

Costs ; Administrative Law
Snow v Secretary, Department of Social Security (Costs) [2024] FCA 1076
COSTS -- where the applicant's application was dismissed -- where the respondent does not seek costs -- where the applicant seeks costs -- where applicant's proceeding is not public interest in nature -- where insufficient evidence that the respondent resisted any attempts to settle or explore alternative dispute resolution -- where lack of evidence that the respondent breached the Federal Court of Australia Act (1976) (Cth) or its model litigant obligations -- whether applicant's impecuniosity justifies a special order as to costs -- no order as to costs
O'SULLIVAN J - 16 September 2024

Migration
FAH19 v Minister for Immigration and Multicultural Affairs [2024] FCA 1066
MIGRATION - appeal from decision of the (then) Federal Circuit Court of Australia - where application for judicial review of a decision of the Immigration Assessment Authority (IAA) affirming Minister's decision to refuse Safe Haven Enterprise visa was dismissed - whether primary judge erred in failing to find that IAA failed to apply correct test - whether IAA failed to take into account the matters in s 473DD(b)(ii) of the Migration Act 1958 (Cth) - appeal dismissed
DOWNES J - 16 SEPTEMBER 2024

Corporations Law
Shire of Carnarvon v State of Western Australia [2024] FCA 1064
CORPORATIONS - application by local government for vesting order and ancillary orders under s 133(9) of the Bankruptcy Act 1966 (Cth) - vesting of a 50% interest in a fee simple estate sought to facilitate a statutory power of sale over the whole estate - effect of disclaimer where a statutory charge held over land - application consented to by mortgagee - within power and just and equitable to vest the interest and make ancillary orders liberalising the process of sale of the whole estate
JACKSON J - 13 September 2024

Corporations Law
Base Resources Limited, in the matter of Base Resources Limited [2024] FCA 1069
SCHEMES OF ARRANGEMENT- second Court hearing- order sought under s 411(1) of the Corporations Act 2001 (Cth)- form of orders where intention to apply for an exemption under US Securities Exchange Act 1933-scheme approved-no issue of principle-orders made
MCELWAINE J - 12 September 2024

Corporations Law
Nipps (Liquidator), in the matter of Dimension Agriculture Pty Ltd (in liq) [2024] FCA 1070
CORPORATIONS - application made by liquidator under s 477(2B) and s 506(1A) of the Corporations Act 2001 (Cth) for retrospective approval of entry into a funding agreement and approval of entry into retainer agreement - whether a proper exercise of the liquidator's powers - suppression orders - application allowed
BANKS-SMITH J - 12 September 2024

Practice and Procedure ; Costs ; Industrial Law
Cavanagh-Downs v Insightsoftware Australia Pty Ltd [2024] FCA 1067
PRACTICE AND PROCEDURE - where expert evidence adduced by applicant conceded to be inadmissible - whether leave should be granted to applicant to adduce other expert evidence and, if so, on what conditions COSTS - application for costs in proceeding arising under Fair Work Act 2009 (Cth) - whether acts or omissions of applicant unreasonable and, if so, whether they caused respondent to incur costs
KATZMANN J - 13 September 2024

Corporations Law
Australian Securities and Investments Commission v ALAMMC Developments Pty Ltd, in the matter of ALAMMC Developments Pty Ltd [2024] FCA 1063
CORPORATIONS - ex parte application for interim relief under s 1323 of the Corporations Act 2001 (Cth)
YATES J - 11 SEPTEMBER 2024

Practice and Procedure ; Consumer Laww
QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes Benz Macarthur [2024] FCA 1062
PRACTICE AND PROCEDURE - appeal from Federal Circuit and Family Court of Australia (Division 2) - notice of objection to competency - application for appeal to be summarily dismissed - whether notice of appeal complies with r 36.01 of the Federal Court Rules 2011 (Cth) PRACTICE AND PROCEDURE - interlocutory application seeking order that the appeal be heard by a Full Court and not a single Judge
YATES J - 13 September 2024

Harris v State Minister for the State of Queensland [2024] FCA 1059
NATIVE TITLE - native title determination application pursuant to s 61(2) of the Native Title Act 1993 (Cth) (NTA) - non-claimant application by non-native title interest holder to satisfy s 13(1)(a) of the NTA - application to convert term lease to perpetual lease - whether there are identifiable communal, group or individual rights and interests possessed under traditional laws and traditional customs - whether it is possible to identify a body of traditional laws and customs in relation to the acquisition, transmission and exercise of rights in relation to the Non-claimant Area - whether there has been continuity of traditional law and customs
SARAH C DERRINGTON J - 13 September 2024

Costs ; Bankruptcy
Pascoe v Voukidis Holdings Pty Ltd (Costs) [2024] FCA 1058
COSTS - indemnity costs - allocation of costs award as between related parties - where Applicant succeeded on most substantive issues - indemnity costs awarded
BUTTON J - 13 September 2024

Practice and Procedure
Schmid v Royal Australian and New Zealand College of Obstetricians and Gynaecologists (Transfer of Proceeding) [2024] FCA 1061
PRACTICE AND PROCEDURE - application for transfer of proceeding to Victorian registry - nexus to Victoria and New South Wales
PERRAM J - 11 SEPTEMBER 2024

Practice and Procedure ; Discovery
Trentham Enterprises Pty Ltd v Rahui [2024] FCA 1065
PRACTICE AND PROCEDURE - application for pre-action discovery pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) - where request for pre-action discovery made after prospective applicant made detailed allegations against prospective respondents in correspondence and threatened commencement of proceedings - whether information upon which allegations were based sufficient to enable prospective applicant to decide whether to commence proceedings - consideration of principles applicable to exercise of discretion to order pre-action discovery - application dismissed
COLVIN J - 10 September 2024

Human Rights
State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120
HUMAN RIGHTS - disability discrimination - appeal - where the respondent was a trainee train driver on probation - where the respondent had Asperger's Syndrome and ADHD and took medication as required - where the appellant terminated her employment purportedly on the basis that she had been dishonest in an application form and pre-employment medical questionnaire - whether, in identifying the hypothetical comparator for the purpose of s 5(1) of the Disability Discrimination Act 1992 (Cth) (DDA) and the not "materially different" circumstances, the primary judge took into account irrelevant considerations or failed to take into account relevant considerations including the subjective intention of the person who purportedly made the decision to terminate the respondent's employment - whether the primary judge erred in finding that the appellant had directly discriminated against the respondent because of her actual or imputed disabilities in contravention of s 15(2) of the DDA by both keeping her out of the driver training course and dismissing her from her employment - whether the primary judge erred in his findings as to causation - whether the primary judge erred in finding that the appellant's request of the respondent that she provide a medical note from her treating physician contravened s 30 of the DDA - appeal allowed in part
BROMWICH, RAPER AND SHARIFF JJ - 12 September 2024

Doyle on behalf of the Iman People #4 v State of Queensland [2024] FCA 1045
NATIVE TITLE - application for consent determination of native title in part of the claim area
RANGIAH J - 12 SEPTEMBER 2024

Practice and Procedure ; Corporations Law
Australian Securities and Investments Commission v Ostrava Equities Pty Ltd (Penal Notice) [2024] FCA 1056
PRACTICE AND PROCEDURE - interlocutory application to vary final orders entered - whether order should be amended to include an endorsement under r 41.06 - where there is significant delay between order being made and application to vary order - where other enforcement mechanisms may be available
HESPE J - 12 September 2024

Public International Law ; Private International Law
Saudi Arabian Cultural Mission v Alramadi [2024] FCA 1060
PUBLIC INTERNATIONAL LAW - Private International Law - application for leave and to extend time to appeal from an interlocutory decision of the Federal Circuit and Family Court of Australia (Division 2) which dismissed the applicants' application for the respondents' proceedings to be summarily dismissed for want of jurisdiction because it was immune from jurisdiction by reason of s 9 of the Foreign States Immunities Act 1985 (Cth) - whether the primary judge erred in finding that the applicants were duly served pursuant to s 24 of the Foreign States Immunities Act 1985 (Cth) - whether the rules of court regarding service out of jurisdiction are "facultative" - whether an embassy can be the department or organ of the foreign State equivalent to DFAT for the purposes of s 24(1) - whether service on a diplomatic mission through the diplomatic channel pursuant to s 24 infringes the inviolability conferred on the premises of missions by art 22 of the Vienna Convention on Diplomatic Relations 1961 - whether a certificate issued pursuant to s 40 of the Foreign States Immunities Act 1985 (Cth) is conclusive evidence of service - whether a foreign State is required to put on evidence that service was not authorised whether the primary judge erred in failing to determine the applicants' claim for immunity from jurisdiction - whether costs should be awarded under s 570(2) of the Fair Work Act 2009 (Cth) - applications and appeal allowed - no order for costs
RAPER J - 12 September 2024

Practice and Procedure ; Criminal Law
AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053
PRACTICE AND PROCEDURE - application for summary dismissal - application that statement of claim be struck out - where applicant alleges surveillance and "law enforcement controlled operation" has been undertaken against her since 2017 - where applicant's statement of claim pleaded in narrative form - where applicant has presented no evidence that supports claims - whether claim "can truly be described as ... one that is contradicted by all the available documents or other materials"
KENNETT J - 11 September 2024

Corporations Law
Construction, Forestry and Maritime Employees Union v AMK Images Pty Ltd (in liq) [2024] FCA 1057
CORPORATIONS - application for leave to proceed against company in liquidation under s 500(2) of the Corporations Act 2001 (Cth) in an appeal in which the appellant contends that the penalties imposed by the primary judge for contraventions of the Fair Work Act 2009 (Cth) were inadequate - where there is a serious issue to be tried - where the proof of debt regime is inapposite - where there would be no apparent prejudice to creditors if leave were to be granted - public interest considerations - leave granted
GOODMAN J - 11 September 2024

Costs ; Patents
Stasiuk v Monster Energy Au Pty Ltd (No 3) [2024] FCA 1052
COSTS - application for award of costs in a lump sum, including indemnity costs - whether costs should be awarded on an indemnity basis following offers of settlement - whether costs should be awarded in a lump sum - whether costs should be awarded for enforcement of costs order in foreign jurisdiction Held: costs awarded in a lump sum including costs on an indemnity basis following offer of compromise but excluding costs of enforcement in foreign jurisdiction
NICHOLAS J - 11 September 2024

Administrative Law
Stiller v Attorney-General [2024] FCA 1049
ADMINISTRATIVE LAW - application for judicial review of decision by delegate of Attorney-General to refuse the applicant's release on parole - whether delegate failed to afford procedural fairness by not providing the applicant with an opportunity to address the deficiencies in his evidence - whether delegate's finding that applicant was not willing and able to comply with parole conditions was unreasonable - whether delegate's decision to refuse the applicant's release on parole was unreasonable, having regard to the remaining term of his sentence - no error - application dismissed
RANGIAH J - 11 SEPTEMBER 2024

Practice and Procedure ; Corporations Law
Bardon Enterprises Pty Ltd v Landmark Building Services Pty Ltd [2024] FCA 1055
PRACTICE AND PROCEDURE - s 471B of the Corporations Act 2001 (Cth) - leave to proceed with claims in an existing proceeding against company in liquidation
NESKOVCIN J - 10 SEPTEMBER 2024

Administrative Law ; Migration
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119
ADMINISTRATIVE LAW - migration - application for judicial review of decision of Administrative Appeals Tribunal - where delegate of Minister refused to grant partner visa - where Ministerial Direction 65 under s 499 of Migration Act 1958 (Cth) applied at time of application for review - where Tribunal applied Direction 90 in conducting review - whether applicant had accrued right in relation to review by Tribunal which engaged s 7(2)(c) of Acts Interpretation Act 1901 (Cth) - whether Tribunal fell into jurisdictional error by applying Direction 90 rather than Direction 65 - whether Court should depart from earlier Full Court authority - appeal dismissed
KATZMANN, DOWLING AND MCDONALD JJ - 11 SEPTEMBER 2024

Defamation
Greenwich v Latham [2024] FCA 1050
DEFAMATION - proceeding against a member of New South Wales Parliament brought by another member - imputations pleaded in respect of two impugned publications - consideration of whether imputations conveyed - first imputation made in "primary tweet" held to be conveyed - whether imputation defamatory - consideration of whether publication of defamatory matter about the applicant has caused, or is likely to cause, serious harm to his reputation within the meaning of s 10A(1) of the Defamation Act 2005 (NSW) - serious harm found - defences of honest opinion pursuant to s 31 of the Defamation Act 2005 (NSW) and common law qualified privilege (reply to attack) - where defences not made out - where applicant sought general damages for non-economic loss - where applicant sought aggravated damages - assessment of damages - where alleged unjustifiable conduct said to support award of aggravated damages - quantification of damages
O'CALLAGHAN J - 11 September 2024

Practice and Procedure ; Discovery
Finnegan v Washington (No 4) [2024] FCA 1054
PRACTICE AND PROCEDURE - referee appointed pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) to prepare a report in respect of questions arising in interlocutory disputes - disputes involved the scope of a proposed subpoena, discovery, interrogatories and costs - issues as to scope of proposed subpoena and interrogatories not pressed - consideration of procedure on receipt of referee report - consideration of general principles applicable to the exercise of the Court's discretion to adopt, vary or reject referee report - referee report adopted in respect of certain categories of discovery and interrogatories - referee report not adopted in relation to subpoena issues not pressed - remaining questions as to balance of referee report and costs reserved
JACKSON J - 6 September 2024

Corporations Law
Australian Securities and Investments Commission v Keystone Asset Management Ltd (receivers and managers appointed) (administrators appointed) (No 2) [2024] FCA 1040
CORPORATIONS - external administration - where receivers and managers appointed by the Court over all of the property of the first defendant (Keystone) - where, shortly after the Court appointment, the directors of Keystone appointed voluntary administrators - where the plaintiff (ASIC) applied to the Court for the appointment of provisional liquidators to avoid duplication and potential disputation - where, in the alternative, ASIC applied to the Court for the replacement of the administrators with the same persons who had been appointed receivers and managers - held: orders made for the replacement of the administrators with the same persons who had been appointed receivers and managers
MOSHINSKY J - 5 SEPTEMBER 2024

Corporations Law
Cathro, in the matter of Riverina Solar Pty Ltd (administrators appointed) [2024] FCA 1047
CORPORATIONS - company in administration - application for extension of convening period for second meeting of creditors pursuant to ss 439A and 447A of the Corporations Act 2001 (Cth)
YATES J - 4 SEPTEMBER 2024