Browse Federal Court Judgments

Industrial Law ; Human Rights
Deam v Starlight Children's Foundation Australia [2023] FCA 259
INDUSTRIAL LAW - interlocutory application seeking summary dismissal of proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) - whether s 734 of the Fair Work Act 2009 (Cth) precludes the applicant from making a general protections application to this Court in circumstances where the applicant's prior Australian Human Rights Commission complaint was terminated - whether conduct is substantially the same - interlocutory application granted - proceedings dismissed HUMAN RIGHTS - application for leave to bring proceedings pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) - whether claims have reasonable prospects of success - leave refused
MORTIMER J - 24 March 2023

Practice and Procedure ; Taxation
YTL Power Investments Limited v Commissioner of Taxation [2023] FCA 258
PRACTICE AND PROCEDURE - application for summary dismissal of proceeding - where applicant commenced proceeding by originating application seeking declaratory relief under s 39B of the Judiciary Act 1903 (Cth) - where notice of assessment issued after proceedings commenced - where the Commissioner sought summary dismissal on basis that the applicant had no reasonable prospect of successfully obtaining the declaratory relief sought - whether proceeding should be summarily dismissed
HESPE J - 24 March 2023

Practice and Procedure ; Corporations Law
Frisken v Holdsworth, in the matter of Realmark Services Pty Limited (in liq) (No 2) [2023] FCA 268
PRACTICE AND PROCEDURE - ex parte application for extension of time for service of originating process following unsuccessful attempts at service - whether good reason to grant extension and whether any irremediable prejudice to defendant - order for extension made
O'BRYAN J - 24 March 2023

Migration
AXU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 265
MIGRATION - appeal from the (then) Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority - where the Authority found the appellant gave inconsistent accounts - no jurisdictional error established - appeal dismissed
STEWART J - 24 March 2023

Practice and Procedure
CMW22 v Administrative Appeals Tribunal [2023] FCA 262
PRACTICE AND PROCEDURE - where appellant filed notice of appeal from summary dismissal decision in the Federal Circuit and Family Court of Australia (Division 2) - where leave to appeal was required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) - where appeal not competent - appeal dismissed PRACTICE AND PROCEDURE - where allegation of actual/apprehended bias on judge's behalf - application for judge to recuse herself refused PRACTICE AND PROCEDURE - where appellant has brought multiple proceedings with respect to the same issue - appropriateness of a vexatious proceedings order pursuant to s 37AO of the FCA Act
PERRY J - 24 March 2023

Migration
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
MIGRATION - appeal from a single judge of the Federal Court of Australia - primary judge dismissed application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal") - appellant applied for a visa - application was denied on the basis that he did not pass the character test under s 501(6) of the Migration Act 1958 (Cth) ("Act") - appellant earlier pleaded guilty to a charge of sexual assault, following which he was fined with no conviction recorded - decision to refuse visa was affirmed by the Tribunal - whether primary judge erred in finding that the Tribunal did not fail to consider the appellant's submission that he had been "tested in the community" from the point at which his guilt was admitted - whether primary judge erred in finding that the Tribunal was correct to find that there was no temporal limitation on its assessment of risk under s 501(6)(d) of the Act - whether the primary judge erred in concluding that the Tribunal did not misconstrue para 8.1 of Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - Tribunal decision not attended by jurisdictional error - primary judge did not err by so concluding - appeal dismissed with costs
MORTIMER, SNADEN AND RAPER JJ - 24 March 2023

Constitutional Law ; Statutory Interpretation ; Workers' Compensation
Casey v DePuy International Ltd (Appeal from Independent Counsel) [2023] FCA 254
CONSTITUTIONAL LAW - application by group member of class action - where class action settlement approved under s 33V(1) of Federal Court of Australia Act 1976 (Cth) - where settlement contemplates future disputes to be resolved by Independent Counsel - where settlement permits appeal to Federal Court from Independent Counsel's decision - where group member appeals Independent Counsel's decision - whether Federal Court has jurisdiction to hear appeal STATUTORY INTERPRETATION - meaning of 'outside Victoria' - whether Commonwealth is outside Victoria under s 85 of Accidents Compensation Act 1985 (Vic) WORKERS' COMPENSATION - where WorkSafe Victoria paid out of pocket expenses on group member's behalf - whether group member liable to repay expenses - whether Respondents liable to compensate group member for such expenses under settlement agreement - whether group member failed to make compensation claim in accordance with settlement agreement
PERRAM J - 24 March 2023

Industrial Law
Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48
INDUSTRIAL LAW - High Court remittal - section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) - whether the primary trial judge was correct to find that the appellants did not fall within the extended definition of "employee" pursuant to s 12(3) of the SGA Act - where the primary judge was correct to find that the contracts of employment between the appellants and first and second respondents were not wholly or principally for the labour of the appellants - where the appellants have not discharged the onus of proving that the contracts of employment were principally for their labour and therefore the second element of s 12(3) of the SGA Act is not satisfied - appeal dismissed
PERRAM, WIGNEY AND ANDERSON JJ - 24 March 2023

Taxation
Konebada Pty Ltd ATF the William Lewski Family Trust v Commissioner of Taxation [2023] FCA 257
TAXATION - Goods and Services Tax - A New Tax System (Goods and Services Tax) Act 1999 (Cth) - whether applicant entitled to input tax credits in respect of payment of invoices for provision of services - whether services acquired in carrying on an enterprise
HESPE J - 24 March 2023

Corporations Law
White (Administrator), in the matter of Schramm Australia Holding Pty Ltd [2023] FCA 261
CORPORATIONS - administration - Schramm group of companies - application under s 439A of the Corporations Act 2001 (Cth) for three month extension of time for convening second meetings of creditors - group administration with active sale process underway - a number of interested parties suggest timetable for sale process currently impractical - extension of time to facilitate sale process in interests of stakeholders and no evidence of prejudice - applicable principles - extension granted
BANKS-SMITH J - 22 March 2023

Contempt of Court
Lusty (Examiner) v DER22 [2023] FCA 255
CONTEMPT OF COURT - refusal to answer questions in Australian Crime Commission examination under s 34A(a)(ii) of Australian Crime Commission Act 2002 (Cth) - Court's power to deal with contempt under s 34B of Australian Crime Commission Act 2002 (Cth) - consideration of principles relevant to fixing sentences for contempt - where contempt subsequently purged - consideration of respondent's circumstances, including partial cooperation and personal circumstances - sentence of four months' imprisonment - sentence suspended
WIGNEY J - 2 February 2023

Practice and Procedure ; Corporations Law
GCTR Investments Pty Ltd v DJD Family Holdings [2023] FCA 260
PRACTICE AND PROCEDURE - application for default judgment pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) - where respondents have failed to file defence - Held: relief granted.
CHEESEMAN J - 16 March 2023

Consumer Law
Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45
CONSUMER LAW - misleading or deceptive conduct - false or misleading representations - appeal - where primary judge found Mazda Australia Pty Limited (Mazda) contravened s 18(1) and s 29(1)(m) of the Australian Consumer Law (ACL) by making false representations concerning existence or effect of consumer guarantees, rights or remedies and false representations that it had reasonable grounds for expressing opinions that nine consumers who had purchased Mazda vehicles not entitled to refund or replacement vehicle at no cost to them under ACL (misrepresentation case) - where false representations were found to arise by implication - where consideration of whether a representation that a party has reasonable grounds for expressing opinion should be approached from perspective of target audience - appeal dismissed CONSUMER LAW - unconscionable conduct - where misrepresentation case provided foundation for unconscionable conduct case - appeal - where primary judge found Mazda did not contravene s 21 of the ACL - where no dishonesty or systemic conduct case alleged - where Australian Competition and Consumer Commission contends primary judge failed to use correct judicial technique to assess unconscionability, give sufficient weight to relevant findings and provide adequate reasons - where primary judge faced with unenviable task but ultimately did not provide sufficient reasons - where majority conclude independently of primary judge that Mazda's conduct does not sufficiently depart from acceptable commercial behaviour to contravene s 21 of the ACL - appeal dismissed
MORTIMER, LEE AND HALLEY JJ - 23 March 2023

Costs
Watkins v Tatana [2023] FCA 248
COSTS - applicants commenced defamation proceeding against respondent - counsel for respondent engaged on a pro bono basis - applicants took no steps to prosecute their proceeding - applicants sought to have their proceeding dismissed with no order as to costs - whether applicants should pay respondent's costs of the proceeding - whether appropriate to make an order pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth) that the costs of respondent be paid directly to pro bono counsel
O'CALLAGHAN J - 23 March 2023

Migration
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 247
MIGRATION - application for judicial review of decision of the Australian Administrative Appeals Tribunal - where alleged jurisdictional error by reason of misapplying or misconstruing Direction No. 90 para 9.4.1(2)(a)(ii) - where applicant alleged Tribunal conflated contributing positively to the Australian community with community work - where error was alleged to be material to the outcome - application dismissed
COLVIN J - 23 March 2023

Migration
CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 252
MIGRATION - application for an extension of time and judicial review of an Administrative Appeal Tribunal decision - where Administrative Appeal Tribunal affirmed delegate's decision not to revoke the mandatory cancellation of the applicant's visa -
FEUTRILL J - 23 March 2023

Consumer Law
Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2023] FCA 256
CONSUMER LAW - admitted contraventions of ss 31(1), 47(1)(a) and 47(1)(e) of the National Consumer Credit Protection Act 2009 (Cth) - pecuniary penalties sought by applicant not opposed by respondent - whether form of declarations appropriate - whether quantum of penalties appropriate
O'BRYAN J - 10 March 2023

Costs
Storry v Business Licensing Authority (No 3) [2023] FCA 245
COSTS - whether an order for costs should be made - where respondent, as the successful party, made no application for costs - no order as to costs
THOMAS J - 23 March 2023

Practice and Procedure ; Corporations Law
Australian Communications and Media Authority v Jones [2023] FCA 246
PRACTICE AND PROCEDURE - application for default judgment against the second respondent pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) - where second respondent failed to file notice of address for service - where second respondent failed to appear at case management hearings and interlocutory hearings - where second respondent failed to defend proceedings with due diligence - default judgment granted - second respondent taken to have admitted the relevant facts outlined in the concise statement
THOMAS J - 23 March 2023

Practice and Procedure ; Defamation
Lehrmann v Network Ten Pty Limited (Notice to Produce) [2023] FCA 250
PRACTICE AND PROCEDURE - reasons specifically sought - application to set aside paragraph of notice to produce - whether document sought sufficiently relevant to application for extension of time - where notice a vehicle for the production of vast reams of material - where Notice a "fishing expedition" - Notice set aside in part
LEE J - 16 March 2023

Corporations Law
Castledine, in the matter of an application by Castledine [2023] FCA 249
CORPORATIONS - automatic disqualification from management of corporation - applicant convicted of offence of communicating insider information - pleaded guilty and no other relevant offending - where seeks leave to manage private family company - application granted
BANKS-SMITH J - 16 March 2023

Corporations Law
Francis (Trustee), in the matter of Fotios (Bankrupt) v Helios Corporation Pty Ltd (No 3) [2023] FCA 251
CORPORATIONS - application by Court appointed receivers of trust assets for advice and approval of entry into instruments to effect proposed settlement - application for approval of remuneration and orders for release from liability - application by trustees in bankruptcy for approval of remuneration on basis of work done to preserve trust assets - application for conditional orders dismissing proceedings - where issue as to whether priority of claims against trust assets by successive trustees should be determined in order of time or equally - orders made substantially in terms sought
COLVIN J - 22 March 2023

Bankruptcy ; Contract
Kim v Ghedia, in the matter of Hammoud Investments Pty Ltd (in liq) [2023] FCA 253
BANKRUPTCY - external administration - proof and ranking of claims - admission of proof of debt by liquidators - appeal against admission of proof of debt under the Corporations Act 2001 (Cth), sch 2, s 90-15 - where purported debt arises from oral agreement - whether reliance should be placed on later formal loan agreement - whether reliance should be placed on balance sheet
JACKMAN J - 8 March 2023

Trade Marks
Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44
TRADE MARKS - application for leave to appeal from judgment of a single judge of the Court pursuant to s 195(2) of the Trade Marks Act 1995 (Cth) (the Act) - where primary judge dismissed an appeal from the decision of a delegate of the Registrar of Trade Marks in opposition proceedings - where delegate granted respondent's application under s 92(4)(b) of the Act to remove the applicant's registered trade mark MOTHERLAND from the Register for non-use - whether primary judge erred in finding applicant had not used MOTHERLAND as a trade mark - whether primary judge erred in finding applicant had not used MOTHERLAND as a trade mark during the relevant non-use period - no error established - application for leave to appeal dismissed TRADE MARKS - application for leave to appeal from judgment of a single judge of the Court pursuant to s 195(2) of the Act - where primary judge dismissed an appeal from the decision of a delegate of the Registrar of Trade Marks in opposition proceedings - where delegate found that applicant had not established grounds of opposition under ss 44, 60 and 42(b) of the Act to the respondent's application to register MOTHERSKY - whether primary judge erred in failing to find that "coffee" and "non-alcoholic beverages" are similar goods within the meaning of s 44(1) of the Act - whether primary judge erred in finding that MOTHERSKY is not deceptively similar to MOTHER within the meaning of s 44(1) - whether primary judge erred in failing to find that use of MOTHERSKY in respect of "coffee" would be likely to deceive or cause confusion due to the reputation of MOTHER - error established - application for leave to appeal granted - appeal allowed
YATES, STEWART AND ROFE JJ - 22 March 2023

Bankruptcy
CSM Lawyers Pty Ltd v Manzo, in the matter of Manzo [2023] FCA 236
BANKRUPTCY AND INSOLVENCY - application by respondent to set aside sequestration order made by registrar - whether s 52(1) Bankruptcy Act 1966 (Cth) satisfied - whether valid service of bankruptcy notice and creditor's petition - where creditor's petition not served personally - where notice of appearance entered by respondent - where respondent failed to file statement of affairs - where respondent relied upon third party support to seek to establish solvency - where evidence failed to establish that respondent is able to pay his debts as and when they fall due - where respondent failed to establish other sufficient cause to set aside sequestration order - application dismissed and decision of registrar affirmed
DOWNES J - 21 March 2023

Representative Proceedings
Lay v PTTEP Australasia (Ashmore Cartier) Pty Ltd (Settlement Distribution) [2023] FCA 242
REPRESENTATIVE PROCEEDINGS - application to approve scheme for distribution of settlement proceeds pursuant to s 33V(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) - whether deductions proposed to be paid to litigation funder and solicitors are just - where referee appointed to inquire into and report upon reasonableness of legal costs - where report of referee adopted by the Court - proposed deductions from settlement sum allowed - orders made to tender settlement administration
LEE J - 3 MARCH 2023

Taxation
Sunlite Australia Pty Ltd v Commissioner of Taxation [2023] FCAFC 43
TAXATION - appeal against decision of the Australian Administrative Appeals Tribunal - where Commissioner conducted an audit and issued amended assessments - where Commissioner disallowed objection - where Tribunal upheld Commissioner's decision save as to the shortfall penalty - where appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - where applicant contends that the Tribunal erred in its construction of s 355-205 Income Tax Assessment Act 1997 (Cth) - where applicant contends that as a result of error in construction the Tribunal failed to determine the main issue - where respondent disputes both grounds - where respondent maintains that proceedings are incompetent as applicant seeks to raise new matters - where applicant claims entitlement to notional deduction pursuant to Income Tax Assessment Act Division 355 - where tax offset may be available for R&D entities which incur R&D expenditure - consideration of meaning of entity under Income Tax Assessment Act - consideration of circumstances in which Court on appeal from Tribunal may make factual findings - appeal dismissed
COLVIN, O'SULLIVAN AND FEUTRILL JJ - 21 March 2023

Practice and Procedure ; Corporations Law
Mainland Property Holdings Pty Ltd (Receivers and Managers Appointed) v Naplend Pty Ltd (No 2) [2023] FCA 243
PRACTICE AND PROCEDURE - application for injunction to restrain counsel from acting for respondents in hearing to be conducted by Judicial Registrar in his capacity as a referee appointed pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) - whether there is a real and sensible possibility of the misuse of confidential information - whether the proper administration of justice requires counsel be restrained from acting - application dismissed
O'CALLAGHAN J - 20 March 2023

Corporations Law
Australian Securities and Investments Commission v Marco (No 14) [2023] FCA 244
CORPORATIONS - application by Court appointed Receivers for fixing remuneration and interim payment of remuneration pending determination by a Registrar - fixing of an appropriate percentage for interim payment - whether interim payment is subject to appropriate safeguards
FEUTRILL J - 21 MARCH 2023

Corporations Law
Essential Metals Limited, in the matter of Essential Metals Limited [2023] FCA 240
CORPORATIONS - scheme of arrangement - application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement by acquisition of shares - performance risk - break fee - director benefits and recommendation - shareholder communications - call scripts - orders made
BANKS-SMITH J - 17 March 2023

Costs ; Migration
Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241
COSTS - application by successful party for an order under s 486F of the Migration Act 1958 (Cth) - where a person who was neither a lawyer nor a migration agent prepared court documents and sought to appear at the hearing on the applicants' behalf in their application for an extension of time to appeal from the lower court's judgment - where the Court dismissed the application, concluding that the proposed grounds of appeal were hopeless and the prospective appeal was bound to fail - whether an order under s 486F ought to be made requiring the person to pay the first respondent's costs of the application in this Court - whether an order should be made for the costs to be paid in a lump sum and in the amount sought
KATZMANN J - 21 MARCH 2023

Migration
BUW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 238
MIGRATION - appeal from orders of the then Federal Circuit Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming earlier decision of delegate of the Minister not to grant appellant protection visa - where Tribunal failed to consider whether significant corroborative evidence was genuine, give any genuine consideration to corroborative evidence or consider extent it corroborated significant aspects of appellant's claims of fear of harm - appeal allowed
HALLEY J - 21 March 2023

Corporations Law
Singh v Khan (No 2) [2023] FCA 239

COLVIN J - 20 March 2023

Migration
DDZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 233
MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority to affirm the decision of a delegate of the Minister to refuse to grant the appellant a protection visa - whether primary judge made a jurisdictional error - whether Authority acted unreasonably - whether appellant required to provide submissions to satisfy materiality test - whether Authority failed to determine an integer of the claim or take into account relevant information
BURLEY J - 20 March 2023