Browse Federal Court Judgments

Published in the last week

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


Native Title
Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 2) [2024] FCA 385
NATIVE TITLE - application to be joined as a respondent party to a native title determination application pursuant to s 84(5) of the Native Title Act 1993 (Cth) - whether joinder applicant is person whose interest may be affected by determination of native title - whether joinder applicant acting in representative capacity - whether in interests of justice to allow joinder - whether adequate justification for delay - where existing parties prejudiced if joinder allowed
COLLIER J - 18 April 2024


Practice and Procedure ; Industrial Law
O'Brien v Caboolture Aero Club Inc [2024] FCA 392
PRACTICE AND PROCEDURE - application for leave to amend statement of claim - whether there is sufficient explanation for the delay - whether amendments are 'hopeless' and could not succeed - whether there is prejudice suffered by the respondents - whether issues arise out of the same substratum of facts - amendments required to determine the real questions in controversy - sufficient explanation for delay - amendments allowed PRACTICE AND PROCEDURE - application for Court-ordered mediation - lack of consent to attend mediation - where significant costs have been incurred - proceedings referred to mediation
MEAGHER J - 18 April 2024


Native Title
Hippi on behalf of the Gamilaraay People v State of Queensland [2024] FCA 380
NATIVE TITLE - s 84(5) Native Title Act 1993 (Cth) - application to be joined as a party to Native Title determination application -prima facie interest in the land and waters established - finding that joinder applicants sought joinder for purpose of acting as representatives to assert Native Title rights on behalf of other people - delay in filing application for joinder - discretionary considerations not sufficient to allow application - application for joinder dismissed
COLLIER J - 18 April 2024


Practice and Procedure ; Corporations Law
Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 6) [2024] FCA 379
PRACTICE AND PROCEDURE - interlocutory applications seeking competing orders for distribution of proceeds of sale - where equitable right of exoneration applies in trustee's favour - where trustee's application granted
MARKOVIC J - 18 April 2024


Migration
BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387
MIGRATION - visas - appeal from orders of a judge of the Federal Circuit Court and Family Court of Australia (Division 2) dismissing application for judicial review - where the Appellant was granted a Global Special Humanitarian visa in October 2010 - where delegate subsequently cancelled the Appellant's visa pursuant to s 116(1AA) of the Migration Act 1958 (Cth) (the Act) - where the Administrative Appeals Tribunal affirmed the delegate's decision - whether the primary judge erred in construing the meaning of the term "identity" in s 116(1AA) of the Act - whether the primary judge erred in finding that procedural fairness was not required to be afforded to the Appellant's half-brother in circumstances where the half-brother held a visa as a dependent member of the Appellant's family unit - whether the primary judge erred in failing to find that the Tribunal had failed to consider the mandatory legal consequences of its decision - appeal dismissed
BUTTON J - 18 April 2024


Bankruptcy
Trygve, in the matter of Pacquola Group Pty Ltd (Administrator Appointed) [2024] FCA 393
BANKRUPTCY AND INSOLVENCY - Application under s 90-15 of the Insolvency Practice Schedule (Corporations) contained in Schedule 2 of the Corporations Act 2001 (Cth) - where a resolution was passed in favour of a deed of company arrangement proposal - where administrator subsequently identified that the wording of the deed of company arrangement proposal attached to the notice of meeting gave rise to three fundamental problems - where problems are said to undermine the effectiveness of the deed of company arrangement, could unintentionally put employee creditors in a worse position and mean that the deed of company arrangement would not conform with the Corporations Act 2001 (Cth) - where it is appropriate for the court to make the directions sought.
MCEVOY J - 17 April 2024


Representative Proceedings ; Costs
Watson & Co Superannuation Pty Ltd v Dixon Advisory and Superannuation Services Ltd (Settlement Approval) [2024] FCA 386
REPRESENTATIVE PROCEEDINGS - settlement approval - where proposed settlement amount represents substantially all of the funds that the respondents have available to satisfy judgment - where settlement deed seeks to preserve ability of group members to make claims to the Australian Financial Complaints Authority - settlement approved COSTS - whether costs incurred by litigation funder in stayed proceedings should be ordered in relation to settlement in this proceeding - where only some work of enduring benefit - limited costs awarded INSOLVENCY - application by deed administrators for directions under s 90-15 of Div 90 of Sch 2 (Insolvency Practice Schedule (Corporations)) to the Corporations Act (2001) (Cth) - where application made in connection with approval of a settlement in representative proceedings - application for direction granted
THAWLEY J - 17 April 2024


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


Corporations Law
Ogbonna v CIT Logistics Ltd (No 2) [2024] FCA 383

FEUTRILL J - 28 March 2024


Corporations Law
Primary Securities Ltd as Trustee of the Baker Partners Founders Fund v Warburton [2024] FCA 382
CORPORATIONS - application for directions by trustee - whether trustee justified in continuing or commencing proceeding against certain respondents and discontinuing proceeding against other respondents - claims for alleged receipt of misappropriated property - commercial trustee - opinion of counsel tendered - directions given
JACKSON J - 17 April 2024


Civil Penalty ; Administrative Law
Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374
CIVIL PENALTY - proceeding for civil contraventions of ss 73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) - where failures involved breaches of the NDIS Practice Guidelines and the NDIS Code of Conduct - where conduct serious - where failures placed NDIS participant at a real and significant risk for which the consequences were fatal - whether there were mitigating factors present - whether it is appropriate for the Court to make declarations of contraventions and to impose civil penalties sought. HELD: the contraventions of ss 73J and 73V were made out - the Court was satisfied that the declarations and pecuniary penalty sought was appropriate having regard to all relevant matters.
RAPER J - 17 April 2024


Corporations Law
Australian Securities and Investments Commission v Blumenthal [2024] FCA 384
CORPORATIONS - where parties jointly seek agreed declarations and penalty orders in relation to admitted contraventions of the Corporations Act 2001 (Cth) - where contravening conduct concerned breaches by the defendant of his directors' duties and provision preventing a person from creating a false or misleading appearance of active trading - where disqualification and pecuniary penalty sought - where contravening conduct serious - where application made for leave pursuant to s 206G of the Corporations Act for disqualified person to manage particular corporations - where suitable limitations proposed with respect to such leave
STEWART J - 12 April 2024


Costs ; Corporations Law
Mentha v Australian Securities and Investments Commission (Costs) [2024] FCA 375
COSTS - where proceedings dismissed by consent with no hearing on the merits - whether Respondents "in substance surrendered or capitulated" - whether Applicants entitled to costs of the proceeding - whether Respondents' conduct following judgment delivery in related proceedings unreasonable - whether Applicants entitled to indemnity costs - application dismissed
BUTTON J - 16 April 2024


Administrative Law
Dik v Director of Professional Services Review [2024] FCA 370
ADMINISTRATIVE LAW - application to review a decision made by the Determining Authority to make directions that the applicant be repay benefits for Medicare Benefit Schedule items for which he was found to have engaged in inappropriate practice and be disqualified for 18 months under s 106U of the Health Insurance Act 1973 (Cth) - whether Determining Authority's directions were unreasonable - whether Determining Authority failed or constructively failed to consider submissions - whether Determining Authority should have had particular evidence that was before the Professional Services Review Committee before it for consideration - whether Determining Authority fell into error by adopting certain of the Committee's findings - whether extension of time should be granted where application for judicial review of Committee's decision filed 388 days after applicant had been given notice of that decision and after Determining Authority had made its decision - whether Committee erred by relying on flawed samples - whether Committee relied on incomplete information or records about consultations - whether Committee applied incorrect approach to assessing what would be acceptable to the general body of the profession - whether Committee failed to give reasons in respect of exceptional circumstances - whether Committee was biased or denied the applicant procedural fairness - application dismissed
RAPER J - 16 April 2024


Costs ; Defamation
Greiss v Seven Network Operations Ltd (Costs) [2024] FCA 377
COSTS - action for defamation - where applicant sued on three publications and succeeded on only one - where respondents allege applicant engaged in disentitling conduct - where award was less than $100,000 - whether respondents should pay applicant's costs - whether applicant should be required to pay a substantial portion of respondents' costs - whether costs should be reduced by a specified amount under r 40.08(a) of Federal Court Rules 2011 (Cth)
KATZMANN J - 16 April 2024


Administrative Law
Singh v Minister for Government Services [2024] FCA 368
ADMINISTRATIVE LAW - application for judicial review of decision made under Scheme for Compensation for Detriment caused by Defective Administration - non-statutory scheme - substitution of proper respondent - whether non-statutorily based administrative actions are amenable to prerogative relief - whether the Court has jurisdiction to grant relief under s 39B of the Judiciary Act 1903 (Cth) - jurisdictional error - failure to take into account relevant considerations - error of law - procedural fairness - reasonable apprehension of bias - improper exercise of power
NESKOVCIN J - 16 April 2024


Practice and Procedure ; Corporations Law
O'Shannassy v Sarina [2024] FCA 378
PRACTICE AND PROCEDURE - application for a stay of proceeding in the Court below pending application for leave to appeal - application dismissed
STEWART J - 12 April 2024


Practice and Procedure ; Taxation
Deputy Commissioner of Taxation v Kocic (No 2) [2024] FCA 372
PRACTICE AND PROCEDURE - where leave sought to file an amended originating application pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) (FCR) - where leave sought to file a statement of claim - where joinder of parties sought pursuant to r 9.05 of the FCR - where amended originating application, accompanying statement of claim and joinder are in aid of the relief sought pursuant to s 37A of the Conveyancing Act 1919 (NSW) (Conveyancing Act) - whether amendment to pleadings is based on the same facts or substantially the same facts as those already pleaded - whether this Court has jurisdiction in respect to the claim sought to be brought pursuant to s 37A of the Conveyancing Act
ABRAHAM J - 16 April 2024


Migration
BZE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 371
MIGRATION - appeal against decision of Federal Circuit and Family Court of Australia - whether primary judge erred in finding no jurisdictional error by Administrative Appeals Tribunal - where Tribunal affirmed decision not to grant protection visa - provision of bogus documents - whether Tribunal misapplied s 91WA - whether unreasonable or procedurally unfair for Tribunal to find no reasonable explanation for providing bogus documents - whether Tribunal misinterpreted s 36(3) - appeal dismissed
RANGIAH J - 16 April 2024


Migration
Omani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 376
MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal concerning a visa cancellation decision - Minister conceded jurisdictional error - proposed consent orders - jurisdictional error established to the satisfaction of the Court - relief granted
GOODMAN J - 15 April 2024


Costs ; Corporations Law
AustCorp Consulting Pty Limited v Callaghan (No 2) [2024] FCA 367
COSTS - determination of appropriate costs order - review of Registrar's decision to grant preliminary discovery - where on review prospective respondents unsuccessfully opposed preliminary discovery being granted - where prospective respondents achieved partial success in limiting the scope of some categories of documents to be discovered
YATES J - 15 April 2024


Criminal Law
Taylor v Brookman [2024] FCA 200
CRIMINAL LAW -- application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) (Criminal Code) -- where respondent has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act -- where respondent does not oppose the controls -- whether proposed orders reasonably necessary -- whether proposed orders reasonably appropriate and adapted -- where interim control orders made CRIMINAL LAW -- where election made to confirm control order -- where conditions under ss 104.4(1)(c) and (d) of the Criminal Code satisfied -- interim control orders confirmed.
BESANKO J - 4 March 2024


Defamation
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
DEFAMATION - the Lehrmann imbroglio - underlying controversy a cause celebre - where applicant sues in defamation over a special edition of The Project programme broadcast by Network Ten - where publications televised and published online - where imputations the applicant raped Ms Higgins in Parliament House in 2019 - where substance of each matter relevantly identical - imputations conveyed DEFAMATION - identification - where respondents contend the programme did not identify the applicant - where applicant is unnamed in programme - observations as to relevant principles - whether persons with special knowledge of the applicant reasonably understood the publication to concern him - extent of identification - where identification witnesses called - gossip and rumour - identification established DEFAMATION - defences - substantial truth - s 25 of the Defamation Act 2005 (NSW) - where evidence of two key witnesses unsatisfactory - consideration of relevant principles - requirement to prove rape as that concept is understood by the ordinary viewer of publication - elements of rape considered - non-consent and knowledge elements - recklessness - where applicant indifferent to the rights of Ms Higgins as to ignore the requirement of consent - where applicant raped Ms Higgins - defence established DEFAMATION - defences - statutory qualified privilege - s 30 of the Defamation Act - proper construction - consideration of relevant principles - separate assessment of conduct of the respondents - distinguishing features of Ms Wilkinson's conduct - conduct of respondents not reasonable in publication of defamatory matter DEFAMATION - observations as to other defences - common law justification - Lange defence - common law qualified privilege EVIDENCE - observations as to fact-finding, onus and standard of proof - difference between civil and criminal standards - credit findings concerning complainant of sexual assault - contemporaneous representations - whether Court bound to accept account of either of the principal witnesses - discussion of need for nuance in credit findings and the flaw in falsus in uno, falsus in omnibus approach - implied admissions and "consciousness of guilt" - Edwards lies DAMAGES - consideration of counterfactual where substantial truth defence not established - principled approach to assessment including consideration of whether it is licit to award no damages - approach to assessment where lack of apparent connexion between the respondents' wrong and real cause of distress and hurt - where actual damage to reputation only slight because applicant only entitled to be compensated for the reputation he deserves - improper conduct established - where augmentation of damages occasioned by aggravating conduct comes from a low base - modest award of compensatory damages notwithstanding objective gravity of imputations
LEE J - 15 April 2024


Defamation
Selkirk v Wyatt [2024] FCAFC 48
DEFAMATION -- appeal from orders of primary judge dismissing defamation proceeding -- where matter governed by, inter alia, s 10A of the Defamation Act 2005 (Vic) where the primary judge identified three separate questions -- where the primary judge found that "serious harm" within the meaning of s 10A(1) of the Defamation Act not established -- where primary judge did not accept that anyone thought less of the appellant as a result of the publication in circumstances where the appellant admitted she engaged in acts of deception -- where primary judge took into account the limited number of persons to whom the article was published -- where the primary judge decided not to consider whether the article conveyed one or more of the pleaded imputations DEFAMATION -- consideration of what constitutes "serious harm" within the meaning of s10A of the Defamation Act -- consideration of Lachaux v Independent Print Ltd [2019] UKSC 27; (2020) AC 612 -- whether the primary judge erred in refusing during the course of the trial the appellant's application to call three proposed witnesses who has produced written statements -- consideration of the interests of justice and s 37M of the Federal Court of Australia Act 1976 (Cth) -- whether the primary judge erred in relying on the appellant's acceptance that she had engaged in acts of deception -- consideration of Colagrande v Kim [2022] FCA 409 and the onus of proof with respect to bad reputation -- whether the primary judge erred in not determining the meaning of the publication and whether it gave rise to the pleaded imputations -- held: appeal dismissed
BESANKO, ANDERSON AND O'SULLIVAN JJ - 15 April 2024


Costs ; Corporations Law
Spark New Zealand Trading Limited v Lester [2024] FCA 364
COSTS - whether foreign bankrupt has standing to seek costs - whether court should exercise discretion to award costs - where costs may vest with foreign trustee - where conduct of successful party was put in issue
SNADEN J - 15 April 2024


Practice and Procedure ; Statutory Interpretation
Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361
PRACTICE AND PROCEDURE - application for summary dismissal and strike-out of cause of action - where application turns solely on a question of law - where question of law has previously been answered in a single-judge interlocutory decision of a superior court - where applicants contend that decision is plainly wrong - whether question of law should be decided at the final hearing STATUTORY INTERPRETATION - whether limitation period in s 1317K of Corporations Act 2001 (Cth) (Act) may be extended by s 1322(4)(d) - whether limitation period has jurisdictional character with respect to the cause of action conferred by s 1317H STATUTORY INTERPRETATION - relevance of extrinsic materials to discerning legislative intention of amending legislation
KENNETT J - 12 April 2024


Native Title ; Costs
Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd (No 2) [2024] FCAFC 49
NATIONAL NATIVE TITLE TRIBUNAL - appeal - appropriate orders for remittal of proceeding where appeal allowed on one ground only - s 169(7) Native Title Act 1993 (Cth) - order made remitting matter to heard by the National Native Title Tribunal without further evidence, subject only to proper cause being shown and the Tribunal being satisfied it is appropriate to permit further evidence to be adduced COSTS - where parties agree there should be no order as to costs
MORTIMER CJ, RANGIAH AND O'BRYAN J - 12 April 2024


Practice and Procedure ; Corporations Law
Scordo v Commonwealth Bank of Australia [2024] FCA 359
PRACTICE AND PROCEDURE - application for review of a decision of a Registrar pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the Act) and for recusal - where the Registrar determined competing summary judgment applications - where the Registrar summarily dismissed the proceeding as disclosing no reasonable cause of action and having no reasonable prospects of success - where re-hearing is required to proceed de novo - where applicant's claims are based on pseudo-legal arguments that are unmeritorious - where proceeding lacks any reasonable prospect of success - application dismissed
BUTTON J - 12 April 2024


Patents
Neurim Pharmaceuticals (1991) Ltd v Generic Partners Pty Ltd (No 5) [2024] FCA 360
PATENTS - claims for methods of treatment and Swiss-style claims - methods of treatment for primary insomnia characterised by non-restorative sleep and for improving restorative quality of sleep - construction of claims - meaning of non-restorative sleep - meaning of characterised by non-restorative sleep - meaning of restorative quality of sleep - where fourth edition of Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") incorporated by reference - construction of claims when read with DSM-IV - whether person skilled in the art must be familiar with DSM-IV- whether claims invalid for lack of clarity - whether invention not fully described in complete specification - whether claims invalid for lack of novelty or inventive step or fair basis - whether supply of respondents' products constitutes an infringement under s 117(1) read with sub-sec (2)(b) or (c) of Patents Act 1990 (Cth) - whether respondents' product is a staple commercial product - where respondents' product capable of being used for non-infringing methods of treatment outside patented indication - whether respondents' product information document and/or approved indication for respondents' product constitutes a statement or inducement to use the respondents' product so as to infringe the method of treatment claims by using it for the patented indication - whether Swiss-style claims infringed - whether respondents' product a medicament manufactured for treating a patient suffering from primary insomnia characterised by non-restorative sleep and improving restorative quality of sleep - whether respondents authorised infringement of method of treatment claims by medical practitioners prescribing respondents' product for patented indication - where patented indication and approved indication are different Held: claims of patent valid, method of treatment claims infringed by supply of respondents' product and by authorisation of medical practitioners' infringing use of respondents' product
NICHOLAS J - 12 April 2024


Costs ; Patents
Aristocrat Technologies Australia Pty Limited v Commissioner of Patents (No 4) [2024] FCA 362
COSTS - revision of costs order of the first instance proceedings in light of remittal decision - discretion as to costs - costs to follow the event
BURLEY J - 12 APRIL 2024


Defamation
Winn v Thompson [2024] FCA 358
DEFAMATION - defence of justification - whether proposed amended defence fails to disclose a reasonable defence - whether proposed amended defence is evasive, ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding - leave to rely on proposed amended defence refused - respondents given leave to replead
JACKSON J - 12 APRIL 2024


Commercial Arbitration
Hankuk Carbon Co, Ltd v Energy World Corporation Ltd (No 2) [2024] FCA 366
ARBITRATION - second hearing of application for enforcement of foreign arbitral awards - whether respondent had notice of the hearing - dissolution of stay of judgment previously ordered
STEWART J - 12 APRIL 2024


Bankruptcy
Gothard (Liquidator), in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Loo [2024] FCA 323
INSOLVENCY - application by liquidators for directions and judicial advice - application for approval of entry into a deed of settlement in recovery proceedings - where directions and advice sought are given - application for approval pursuant to s 477(2A) and s 477(2B) of the Corporations Act 2001 (Cth) - where approvals sought are given - where liquidators are justified in causing the company to resolve the recovery proceedings
MARKOVIC J - 29 FEBRUARY 2024


Consumer Law
Australian Securities and Investments Commission v SunshineLoans Pty Ltd (No 2) [2024] FCA 345
CONSUMER LAW - action by regulator under National Consumer Credit Protection Act 2009 (Cth) for contraventions of the National Credit Code - where respondent carries on business of providing small amount credit contracts - whether fee contained in small amount credit contracts permitted to be imposed under the National Credit Code - where fee described as an "amendment" or "rescheduled payment" fee - alleged contraventions of ss 24(1A)(a) and (b) of the National Credit Code and s 47(1)(d) of the National Consumer Credit Protection Act - hearing in relation to liability only - contraventions established CONSUMER LAW - standing and jurisdiction - whether the court has jurisdiction to consider the regulator's allegations - where it was submitted that the regulator lacked standing to enforce the civil penalty provisions contained in the National Credit Code through ss 166, 167 and 177 of the National Consumer Credit Protection Act - arguments rejected - no lack of standing or jurisdiction CONSUMER LAW - evidence - whether court permitted to make findings beyond individual loan files contained in evidence - where respondent made admissions as to the number of times the impugned fee was charged and accepted by it
DERRINGTON J - 12 APRIL 2024


Costs ; Representative Proceedings
McFarlane as Trustee for the S McFarlane Superannuation Fund v Insignia Financial Ltd (No 2) [2024] FCA 356
COSTS - offer of compromise sent by respondent under r 25 of the Federal Court Rules 2011 (Cth) - where the applicant's originating application was dismissed - application by respondent for indemnity costs following rejection of offer of compromise - whether the applicant unreasonably failed to accept the offer - where the applicant's rejection of the offer of compromise was not unreasonable in the circumstances - application for indemnity costs dismissed
ANDERSON J - 11 April 2024


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