Browse Federal Court Judgments

Administrative Law
Barnett v Minister for Health and Aged Care [2023] FCA 1139
ADMINISTRATIVE LAW - application for judicial review of decision made under Scheme for Compensation for Detriment caused by Defective Administration - where claim made relating to refusal in 1990 to provide capital grant funds under a government policy initiative - whether refusal was product of defective administration - whether assessment of defect in 2021 conducted in accordance with applicable scheme - whether decision involved constructive failure to exercise jurisdiction - whether decision was legally unreasonable - no jurisdictional error - application dismissed
SNADEN J - 26 September 2023

Practice and Procedure ; Corporations Law
Australian Competition and Consumer Commission v BlueScope Steel Limited (No 7) [2023] FCA 1140
PRACTICE AND PROCEDURE - Rule 39.05(h) of the Federal Court Rules 2011 (Cth) - the "slip rule" - application to correct error in order made imposing pecuniary penalty on second respondent - principles governing operation of r 39.05(h) - order made
O'BRYAN J - 25 SEPTEMBER 2023

Corporations Law ; Statutory Interpretation
Australian Securities and Investments Commission v Provide Nominees Pty Ltd [2023] FCA 1137
CORPORATIONS - application made by the Australian Securities and Investments Commission (ASIC) under s 70(3) of the Australian Securities and Investments Act 2001 (Cth) (ASIC Act) - alleged failure to comply with notice issued pursuant to s 33(1) of the ASIC Act - whether ASIC has fulfilled the precondition in s 70(2) of the ASIC Act requiring ASIC to certify in writing the failure to comply - whether the Court has jurisdiction to hear and determine the application - whether ASIC has shown that there has been a failure by the defendant to comply with the notice without reasonable excuse - whether the Court has power to make an order requiring the making of an affidavit regarding compliance with the notice - order for compliance made STATUTORY INTERPRETATION - meaning of the phrases "by writing certify" and "failure to comply" in s 70(2) of the Act - scope of power conferred on the Court by s 70(3) to make orders for, and relating to, compliance with a requirement made under Pt 3 of the ASIC Act
O'BRYAN J - 25 September 2023

Migration
CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1133
MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing application for judicial review of a decision of the Immigration Assessment Authority - whether Authority failed to consider relevant material relating to the abuse of human rights in Sri Lanka - whether Authority failed to consider whether the appellant would face a real chance of persecution or significant harm upon return to Sri Lanka - whether the Authority erred in failing to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) - whether Authority misapplied the "real chance" test - no jurisdictional error found - appeal dismissed
ROFE J - 25 September 2023

Administrative Law ; Migration
Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1138
ADMINISTRATIVE LAW - citizenship - application for judicial review of decision refusing to issue certificate of evidence of Australian citizenship for Australian-born child of foreign nationals -- where parents have resided in Australia for many years on a series of temporary visas and child travelled to India at the age of three months to be cared for by his grandparents while his mother was studying in Australia, whether child an Australian citizen by virtue of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) -- where the child remained in India for over eight years while his parents lived in Australia, whether throughout the first 10 years of his life the child was "ordinarily resident" in Australia as defined by s 3 of Citizenship Act in that Australia was his "permanent abode" and his absence was temporary - where parents gave evidence about their intentions, whether, and to what extent, weight should be given to that evidence
KATZMANN J - 25 SEPTEMBER 2023

Corporations Law
A-Cap Energy Limited, in the matter of A-Cap Energy Limited [2023] FCA 1142
CORPORATIONS - Scheme of arrangement - order sought under s 411(1) of the Corporations Act 2001 (Cth) - whether scheme fit for consideration - whether disclosure of directors' interest adequate
FEUTRILL J - 15 September 2023

Administrative Law
Storry v Parkyn [2023] FCA 1141
ADMINISTRATIVE LAW - application for judicial review of a Registrar's decision to refuse to accept documents for filing - application dismissed
RANGIAH J - 21 September 2023

Taxation
Simplot Australia Pty Limited v Commissioner of Taxation [2023] FCA 1115
TAXATION - goods and services tax - exemption - whether certain frozen food supplied and imported by the applicant was "of a kind" "marketed as a prepared meal"
HESPE J - 22 September 2023

Corporations Law
Goyal, in the matter of Halo Food Co. Limited (administrators appointed) (receivers and managers appointed) [2023] FCA 1135
CORPORATIONS - application for an extension of the convening periods for creditors' meetings under s 439A(6) of the Corporations Act 2001 (Cth)
YATES J - 18 September 2023

Migration
Cortes v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1136

COLVIN J - 22 September 2023

Banking ; Practice and Procedure
Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118
BANKING AND FINANCIAL INSTITUTIONS - civil penalties - contravention of financial services laws - unconscionable conduct in contravention of Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) s 12CB(1) - whether the regulator has alleged one contravention or multiple - whether potential prejudice arising from a belated change in the number of contraventions alleged - principles concerning the articulation of the regulator's case for the imposition of civil penalties considered BANKING AND FINANCIAL INSTITUTIONS - pecuniary penalties - appropriate penalty to be imposed pursuant to ASIC Act s 12GBA - whether the unconscionable conduct was "deliberate" - whether the contravenor has previously been found to have engaged in any "similar conduct" - relevant considerations and principles explained - where the maximum available penalty is inadequate given the nature and extent of the contravening conduct, the circumstances in which it took place, and the need for specific and general deterrence - maximum penalty imposed PRACTICE AND PROCEDURE - concise statement - whether principles concerning the articulation of the regulator's case for the imposition of civil penalties apply differently where a concise statement is used in place of conventional pleadings - role of concise statement in civil penalty proceedings considered
DERRINGTON J - 22 September 2023

Costs
Raffin v Modern Assets Australia Pty Ltd [2023] FCA 1130
COSTS - review of Registrar's orders that costs of interlocutory application be paid forthwith - whether costs should be paid forthwith - whether to award indemnity costs - order that costs be paid forthwith on a party and party basis
MCEVOY J - 21 September 2023

Costs
Gale v Australian Financial Complaints Authority (No 2) [2023] FCA 1125
COSTS - application by successful party for indemnity costs against the respondent Australian Financial Complaints Authority and trustee - where both respondents filed submitting notices save as to costs - Hardiman principle considered - public benefit and benefit for applicant in the filing of submitting notices by the respondents - application dismissed
MCEVOY J - 21 September 2023

Migration
DXJL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1124
MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - Tribunal affirmed decision of Minister's delegate not to revoke the mandatory cancellation of the applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) - denial of procedural fairness by Tribunal - failure to notify applicant of issues to which its reasoning processes were directed - jurisdictional error - decision of Tribunal quashed - remitted to Tribunal for determination according to law.
MCEVOY J - 21 September 2023

Industrial Law
Carovska, in the matter of an application for an inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch [2023] FCA 1129
INDUSTRIAL LAW - application for inquiry into elections for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) - allegation of irregularities -whether there are reasonable grounds for the application - inquiry ordered
RAPER J - 21 September 2023

Practice and Procedure ; Corporations Law
Edwards v Hyundai Motor Company Australia Pty Ltd; Sims v Kia Australia Pty Ltd [2023] FCA 1134
PRACTICE AND PROCEDURE - application to transfer two class action proceedings to the Supreme Court of Victoria - application not opposed by respondents in each proceeding - whether transfer is in the interests of justice - whether costs should be made against the applicants - application granted with costs
BROMWICH J - 15 September 2023

Practice and Procedure ; Industrial Law
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 6) [2023] FCA 1116
PRACTICE AND PROCEDURE - referees - referee appointed pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) to provide opinion on the amount by which employees were underpaid in respect of hours worked and untaken annual leave balances - where adoption opposed, whether report should be adopted or rejected
KATZMANN J - 21 September 2023

Aboriginal and Torres Strait Islander Peoples ; Representative Proceedings
Wreck Bay Aboriginal Community Council v Commonwealth of Australia (No 3) [2023] FCA 1132
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - novel claim for interference with use and enjoyment of land, including traditional community and cultural uses - claim for reduction of value in land, and inconvenience and distress REPRESENTATIVE PROCEEDINGS - settlement of class action previously approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) - where Court tasked with approving just deductions from settlement fund pursuant to s 33V(2) of the FCA Act - where referee appointed to inquire into and report to the Court on just deductions - where group members provided written objections to the Court - referee's reports approved subject to two caveats - settlement distribution scheme and proposed distribution orders approved
LEE J - 8 September 2023

Migration
Afegogo v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1128
MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal - reasonable apprehension of bias - conduct of hearing before Tribunal - applicant appeared with assistance of interpreter before Tribunal - Minister's closing submissions interpreted in summary form for applicant - Tribunal expressed clear views and concerns which were not interpreted for applicant - conduct of hearing might lead fair-minded lay person to apprehend bias on part of Tribunal in the form of prejudgement - application allowed
JACKSON J - 21 September 2023

Representative Proceedings ; Practice and Procedure
Gill v Ethicon Sarl (No 13) [2023] FCA 1131
REPRESENTATIVE PROCEEDINGS - three open class representative proceedings brought against manufacturers and suppliers of pelvic "mesh" implants - where proposed settlements approved under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) pending orders for just deductions under s 33V(2) - whether referee's report as to administration of settlement scheme should be adopted PRACTICE AND PROCEDURE - achieving the overarching purpose in case management of class actions - utility of reference process in large scale litigation - tender process for administration of settlement scheme
LEE J - 15 September 2023

Native Title
Bell on behalf of the Wakka Wakka People #4 v State of Queensland (No 3) [2023] FCA 1114
NATIVE TITLE - application for consent determination of native title in part of the claim area
RANGIAH J - 21 September 2023

Insurance
NobleOak Life Limited v Graham [2023] FCA 1127
INSURANCE - life insurance - application by life company to pay benefit amount into court - whether life company can obtain sufficient discharge for policy - potential application of forfeiture rule - competing claims to benefit amount
DERRINGTON J - 25 August 2023

Administrative Law
Babet v Electoral Commissioner [2023] FCA 1126
REFERENDUMS - where Electoral Commissioner issued guidelines to returning officers to count ballot papers on referendum as to question whether voter approved proposed alteration under s 128 of Constitution as informal where voter marked a cross and formal where voter marked a tick - where s 93(8) of the Referendum (Machinery Provisions) Act 1984 (Cth) required marking on ballot paper to be given effect, as formal if "according to the voter's intention, so far as that intention is clear" - whether voter's intention in placing cross on ballot paper clearly expresses intention not to approve proposed law - whether voter's intention in placing tick on ballot paper clearly expresses intention to approve proposed law - held: use of cross ambiguous; use of tick unambiguous. CONSTITUTION - whether necessary to decide constitutional issue of standing.
RARES J - 20 September 2023

Consumer Law
Australian Energy Regulator v Pelican Point Power Ltd [2023] FCA 1110
CONSUMER LAW -- application for declarations of contraventions of National Electricity Rules (NER) pursuant to s 44AAG(1) of the Competition and Consumer Act 2010 (Cth) -- where on 8 February 2017, a day Adelaide recorded a maximum temperature of 42.4 degrees Celsius, the Australian Energy Market Operator (AEMO) had to issue a direction to initiate load shedding to return the power system to a secure operating state in South Australia -- where load shedding was not required in similar conditions on 9 February 2017 as AEMO was able to direct Pelican Point Power Limited (PPPL) to synchronise and dispatch GT12 -- whether (PPPL) contravened cl 3.7.3(e)(2) of the NER by failing to submit its short term Projected Assessment of System Adequacy (PASA) availability for each trading interval during the 8 February 2017 trading day so as to reflect the true physical plant capability of the Pelican Point Power Station that could be made available on 24 hours' notice -- whether PPPL contravened cl 3.7.2(d)(1) of the NER by failing to submit medium term PASA (MT PASA) availability so as to reflect the true physical plant capability of the Pelican Point Power Station that could be made available on 24 hours' notice after the gas turbine GT12 was brought from dry to wet storage on 11 November 2016 -- whether PPPL contravened cl 3.13.2(h) of the NER by failing to notify AEMO promptly on or after 11 November 2016 of the increased MT PASA availability CONSUMER LAW -- where the AER seeks the imposition of civil penalties on PPPL -- where Court made an order that liability be heard separately, and in advance of, the determination of what relief should be granted CONSUMER LAW -- where the highest availability submitted by PPPL in its short term PASA (ST PASA) for the 8 February 2017 trading day was 235 MW -- where PPPL's MT PASA input for 8 February 2017 was 224 MW -- consideration of two hypothetical operating scenarios a reasonable generator would have had in mind, 320 MW scenario which involves GT11 and GT12 operating concurrently for four hours and the 8 February counterfactual which involves GT11 operating as it did on 8 February 2017 and GT12 operating on 8 February 2017 as it in fact operated on 9 February 2017 -- consideration of principles of statutory interpretation -- consideration of proper construction of the defined term "PASA availability" in cll 3.7.2(d)(1) and 3.7.3(e)(2) of the NER -- where issue as to the nature and extent of the Scheduled Generator's obligations in submitting estimates or forecasts of MT and ST PASA -- consideration of the meaning of "current intentions" and "best estimates" -- consideration of how much non-firm gas PPPL could reasonably expect to have been able to obtain on 8 February 2017 on 24 hours' notice -- whether PPPL ought to have reasonably expected that it could have secured the additional gas transport required to operate GT11 on 8 February 2017 and, for four hours, GT12 -- whether the physical condition of GT12 had a bearing on availability of turbines for the purpose of making PASA submissions -- consideration of expert evidence -- where bulk of the historical data of the AER's expert related to January and February 2017 and not November and December 2016 -- held that the AER failed to establish that the MT PASA availability of 224 MW was not a reasonable forecast at that time -- held that PPPL's ST PASA inputs submitted after 3 February 2017 at 12.14 pm contravened cl 3.7.3(e)(2)
BESANKO J - 20 September 2023

Superannuation
Briebach v Host-Plus Pty Ltd [2023] FCA 1122
SUPERANNUATION - superannuation complaints - where the Australian Financial Complaints Authority affirmed the decision of the first respondent to debit the applicant's account by allocation of negative earnings - where the applicant switched the investment choice from "Balanced" to "Stable" and then rolled the account into a self-managed superannuation fund - where the applicant received a total and permanent disability (TPD) benefit - whether the applicant's account was closed and whether the applicant was a deemed member pursuant to the Business rules of the first respondent - whether the Business rules of the first respondent were binding on members - appeal allowed - Business rules not incorporated in the Trust Deed of the first respondent - applicant's account was not closed in accordance with the Trust Deed and therefore was an active account - TPD benefit ought to have been invested in accordance with the applicant's investment choice nomination
THOMAS J - 20 September 2023

Industrial Law
Fair Work Ombudsman v Blakeley [2023] FCA 1121
INDUSTRIAL LAW - pecuniary penalty - contravention of s 500 of the Fair Work Act 2009 (Cth) - where first respondent issued a cease work direction - deliberate and targeted use of foul language - principles of pecuniary penalty - consideration of the appropriate pecuniary penalty - where applicant seeks a non-indemnity order
THOMAS J - 20 September 2023

Practice and Procedure ; Administrative Law
Cooper v National Offshore Petroleum Safety and Environmental Management Authority [2023] FCA 1112
PRACTICE AND PROCEDURE - application for an interlocutory injunction to restrain the second and third respondents from undertaking any activity described in the Scarborough 4D B1 Marine Seismic Survey Environment Plan - where the first respondent had approved plan subject to conditions - where Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) require consultation with relevant persons - where applicant is relevant person and alleges she was not adequately consulted - where regulatory scheme places considerable significance on required consultations - where applicant alleges the first respondent did not have statutory power to make the decision to accept the plan subject to conditions - where applicant alleges, in the alternative, the second and third respondents have not complied with the conditions of acceptance - where applicant is a Mardudhunera lore woman, elder and traditional custodian of Murujuga - where applicant has important cultural responsibilities and obligations relating to places including the area subject to the plan - where second and third respondents accepted a serious question to be tried as to whether first respondent acted beyond power in accepting the plan - where applicant claims cultural and spiritual harm due to impact on Aboriginal cultural heritage including spiritually important songlines - where applicant's concerns include consequences for personal health if she does not speak up about cultural matters - where legal consequence of applicant's case if upheld is that undertaking the seismic survey would be unlawful - where significant financial consequences for second and third respondents if interlocutory injunction granted - where no undertaking as to damages - application granted on basis of more expedited hearing of certain legal issues
COLVIN J - 15 September 2023

Administrative Law
Edser v QSuper Board [2023] FCA 1120
ADMINISTRATIVE LAW - Appeal from determination of the Australian Financial Complaints Authority (Authority) - Whether Authority erred in its interpretation of the clear causation test - Whether Authority made a legally unreasonable, irrational or illogical finding, or a critical finding of fact for which there was no evidential support - Whether Authority was required to resolve ambiguities in medical report - Whether Authority erred in its determination of the clear causation test - Whether Authority erred in failing to consider whether bullying and threats suffered by the applicant were so substantial such as to deny any clear causation - Application dismissed QUESTIONS OF LAW - Notice of objection to competency - Appeal brought pursuant to s 1057 of the Corporations Act 2001 (Cth) - Whether notice of appeal identified questions of law - Whether mixed questions of law and fact - Notice of objection to competency upheld in part
MEAGHER J - 20 September 2023

Migration
Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113
MIGRATION - application for judicial review of Minister's decision to cancel applicant's visa under s 501BA(2) of the Migration Act 1958 (Cth) - whether upon the Minister electing to allow the applicant to be heard by inviting submissions and evidence, the Minister had an obligation to consider that material and if not that failure constituted jurisdictional error by reason of it being a denial of procedural fairness, a legally unreasonable exercise, a failure to have regard to relevant material in his constructive possession and/or failing to act upon a correct understanding of the law - whether the Minister's finding that there was a low likelihood that the applicant would reoffend was so illogical, irrational or unreasonable that the decision to cancel was affected by jurisdictional error - application dismissed
RAPER J - 19 September 2023