Browse Federal Court Judgments

Administrative Law
Child Support Registrar v DQFY [2023] FCA 601
ADMINISTRATIVE LAW - appeal from second review decision of the Administrative Appeals Tribunal (Tribunal) - where Tribunal revoked determination of percentage of care decision and made two care percentage determinations - whether Tribunal misconstrued ss 50 and 54F of the Child Support (Assessment) Act 1989 (Cth) - whether first care percentage determination was illogical or was based on no evidence - whether second care percentage determination exceeded Tribunal's jurisdiction or powers - appeal dismissed
FARRELL J - 7 June 2023

Corporations Law
Australian Securities and Investments Commission v Kaur [2023] FCA 599
CORPORATIONS - operation of unregistered managed investment scheme in contravention of s 601ED(5) of the Corporations Act 2001 (Cth) - carrying on financial services business without an Australian Financial Services Licence in contravention of s 911A of the Corporations Act - investor funds advanced in the form of loans - investor funds were to be pooled and invested into real property projects managed by second defendant - some investor funds or scheme property used by first defendant for benefit of herself and other defendants - many investors not repaid - capital invested likely to have been lost - fourth defendant as director of second defendant breached duty of care and diligence - parties have agreed to entry of judgment against defendants and to facts of contravening conduct - winding up unregistered managed investment scheme - disqualification from managing corporations - appointment of receivers
JACKSON J - 7 June 2023

Practice and Procedure ; Representative Proceedings
Torley v Hyundai Motor Company Australia Pty Limited [2023] FCA 591
PRACTICE AND PROCEDURE - representative proceedings - applications by respondents in each proceeding seeking orders for inspections of the representative applicants' vehicles under r 14.01 of the Federal Court Rules 2011 (Cth) - where respondents seek extensions of time to file their defences - whether the inspections sought should occur before or after close of pleadings
YATES J - 7 JUNE 2023

Migration
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing judicial review application - where Administrative Appeals Tribunal ('Tribunal') affirmed decision of Minister's delegate to refuse to grant protection visa - whether Tribunal made unwarranted assumptions - whether unwarranted assumptions instantiation of rationality ground of review - whether Tribunal failed to provide Appellant with 'information' under s 424A of the Migration Act 1958 (Cth)
PERRAM J - 6 June 2023

Practice and Procedure ; Corporations Law
El Rihani v Hotait (No 3) [2023] FCA 595
PRACTICE AND PROCEDURE - formulation of orders to give effect to the reasons for judgment in El Rihani v Hotait (No 2) [2023] FCA 375
FARRELL J - 6 June 2023

Bankruptcy
Park (Deed Administrator), in the matter of Ellume Limited (Subject to Deed of Company Arrangement) (No 2) [2023] FCA 593
BANKRUPTCY AND INSOLVENCY - where deed administrators applied to abridge time for giving notice of a meeting of creditors to decide whether to amend deed of company arrangement - application granted
DOWNES J - 6 JUNE 2023

Migration
Pooja v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 596
MIGRATION - application for extension of time to seek leave to appeal from, and if granted application for leave to appeal from, primary judgment - where the applicants did not appear at the hearing - where there is no adequate explanation for the delay - where there is no arguable case for error by the primary judge - application dismissed
JACKMAN J - 6 June 2023

Migration
CGG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 584
MIGRATION - refugees - protection visa - refusal of - appeal - jurisdictional error - Administrative Appeal Tribunal's legislative duty to consider claims - whether the Tribunal's conclusion were legally unreasonable - appeal dismissed
FEUTRILL J - 6 JUNE 2023

Migration
Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
MIGRATION - extension of time to apply for judicial review under s 477A(2) of the Migration Act 1958 (Cth) - judicial review of Tribunal's decision to affirm a delegate's decision not to revoke cancellation of a visa under s 501CA of the Migration Act where Direction 79 applied at the time of the delegate's decision - where Direction 90 applied at the time of the Tribunal's decision - whether Tribunal was required to apply Direction 79 in the exercise of its review function under s 500(1)(ba) of the Migration Act - legal unreasonableness - whether Tribunal's reasons irrational, illogical, unreasonable or lacks intelligible justification - whether disproportionate weight given to a mandatory relevant consideration legally unreasonable
FEUTRILL J - 6 June 2023

Practice and Procedure ; Defamation
Do v Kolsumdet Pty Ltd [2023] FCA 592
PRACTICE AND PROCEDURE - application for recusal - application made in relation to hearing of defamation proceedings where applicants seeking for proceedings to be reallocated to another judge of the Federal Court of Australia - principles on recusal - held: application dismissed with applicants to pay respondents' costs
BROMWICH J - 2 June 2023

Corporations Law
Krejci (liquidator), in the matter of Camporeale Properties Pty Ltd (in liquidation) [2023] FCA 586
CORPORATIONS - application under s 477(2B) of the Corporations Act 2001 (Cth) for approval of entry into a deed of settlement and release - application granted - application for orders fixing the remuneration of the receiver and liquidator - whether amount sought by receiver is reasonable - application granted - application for confidentiality orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - application granted
MARKOVIC J - 11 May 2023

Corporations Law ; Practice and Procedure
Australian Securities and Investments Commission v Dunjey [2023] FCA 361
CORPORATIONS - winding up - unregistered managed investment scheme - scheme - interest in scheme -unlicensed financial services business - financial products - dealing in financial products - business where the second defendant executed 'loan agreements' with investors and pooled loan funds in bank accounts - where second defendant represented loan funds would be used for 'investments' - liquidator of company and scheme appointed - winding up corporate trustee - receivers and managers of trust assets appointed
FEUTRILL J - 21 April 2023

Practice and Procedure ; Bankruptcy
Deng v Qi, in the matter of Qi [2023] FCA 589
PRACTICE AND PROCEDURE - application for leave to serve outside the jurisdiction - leave not required because of r 10.42 of the Federal Court Rules (2011) (Cth) - application for order for substituted service - order made
GOODMAN J - 2 JUNE 2023

Practice and Procedure ; Defamation
Roberts-Smith v Fairfax Media Publications Pty Limited (No 40) [2022] FCA 1614
PRACTICE AND PROCEDURE -- claim for damages in three proceedings for defamation -- imputation that the applicant murdered or was involved in the murders of Afghan males under control or containment during the war in Afghanistan -- respondents (newspaper companies and journalists) rely on defences of justification (s 25 Defamation Act 2005 (NSW)) and contextual truth (s 26 Defamation Act 2005 (NSW)) -- respondents subpoena soldiers said to be involved in the murders -- soldiers claim privilege against self-incrimination under s 128 of the Evidence Act 1995 (Cth) -- whether reasonable grounds for objection -- soldiers unwilling to give evidence even with the benefit of a certificate PRACTICE AND PROCEDURE -- consideration of whether the soldier witnesses should be required to give evidence under s 128(4) of the Evidence Act 1995 (Cth) -- consideration of whether Court satisfied that evidence does not tend to prove that a witness has committed an offence against or arising under a law of a foreign country -- meaning of a "law of a foreign country" in s 128(4)(a) -- relevance of risk of action being taken by International Criminal Court PRACTICE AND PROCEDURE -- consideration of factors relevant to "interests of justice" under s 128(4)(b) -- proper and just determination of the proceeding -- seriousness of the offence in respect of which privilege against self-incrimination claimed -- interest of witness in the proceeding -- forensic disadvantage to witness in being required to give evidence -- possible incomplete protection of a certificate -- risk of action being taken by International Criminal Court -- relevance of effect on reputation of witness -- effect on health of witness
BESANKO J - 30 March 2022

Consumer Law
Australian Competition and Consumer Commission v Dell Australia Pty Ltd [2023] FCA 588
CONSUMER LAW - admitted contraventions of ss 18 and 29(1)(i) of the Australian Consumer Law - declaratory relief and consumer redress, compliance and corrective notice orders sought - strikethrough pricing - misleading or deceptive representations made to the effect that monitors bundled with computer purchases were equal in price or cheaper than monitors purchased on a standalone basis - orders sought are appropriate
JACKMAN J - 5 JUNE 2023

Bankruptcy ; Practice and Procedure
Lamb v Sherman [2023] FCAFC 85
BANKRUPTCY AND INSOLVENCY - appeal from making of sequestration order - where, at 4:37pm on last day for compliance, bankrupt lodged by electronic communication application to set aside bankruptcy notice under s 41(6A) of Bankruptcy Act 1966 (Cth) - whether application to set aside bankruptcy notice is "made" to the Court within meaning of s 41(6A)(b) by electronic lodgment of application or by its acceptance for filing - where r 2.01(1)(a) of Federal Court (Bankruptcy) Rules 2016 (Cth) provides application must be "made" by filing - where r 2.25(3) of Federal Court Rules 2011 deems electronic lodgment after 4:30pm to be filed, if accepted, on next business day - whether act of bankruptcy committed within six months before presentation of petition as required by ss 44(1)(c) and 52(1) of the Act - where Registrar purported to extend time for compliance with bankruptcy notice after application lodged - whether Registrar's orders extending time for compliance capable of affecting earlier act of bankruptcy - when application to set aside bankruptcy notice "made" within the meaning of s 41(6A) of the Act - held: appeal dismissed. PRACTICE AND PROCEDURE - operation of rr 2.21-2.25 of Federal Court Rules 2011 regarding document lodgment and filing - when document lodged by electronic communication is filed pursuant to r 2.25.
RARES, ROFE AND DOWNES JJ - 25 MAY 2023

Practice and Procedure ; Defamation
Webb v Commonwealth of Australia (No 3) [2023] FCA 558
PRACTICE AND PROCEDURE: application for extension of time and leave to appeal from interlocutory orders by a judge of this Court, pursuant to rule 35.14 of the Federal Court Rules 2011 (Cth) - where the applicant brought proceedings against the Commonwealth for defamation - where the primary judge struck out the applicant's statement of claim, with costs, upon the basis that it failed to disclose a reasonable cause of action - where leave was granted to replead - where the primary judge summarily dismissed the proceeding with costs, upon the basis that the amended statement of claim, filed pursuant to the leave to replead, had no reasonable prospects of success - consideration whether the judgments below were attended with sufficient doubt to warrant reconsideration by a Full Court - whether there is a sufficient basis for extension of time - held: the application for leave to appeal and extension of time be dismissed with costs
BROMWICH J - 30 MAY 2023

Migration
BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585
MIGRATION - character cancellation - whether "another reason" for revocation of cancellation of partner visa under s 501CA(4) of the Migration Act 1958 (Cth) - mental health of applicant and extent of health care available to applicant if removed considered under Direction No 90 - whether Tribunal "acted under dictation" by adopting the reasons and conclusions of earlier Tribunal decision regarding applicant's mental health in the context of application for protection visa - whether earlier Tribunal decision was unsatisfactory - application dismissed
STEWART J - 5 JUNE 2023

Industrial Law ; Practice and Procedure
Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569
INDUSTRIAL LAW - conduct said to be in breach of various terms of the Fair Work Act 2009 (Cth) - alleged steps taken by the respondents in issuing directions that employees receive vaccinations to inoculate them against COVID-19 and subsequent termination of the applicants from their employment as a result of failing to comply with directions PRACTICE AND PROCEDURE - interlocutory application for summary dismissal and/or strike-out of pleadings - whether pleadings inadequate - leave granted to re-plead certain claims - certain claims dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) INDUSTRIAL LAW - application for extension of time for filing general protections application - whether only extension of time for adverse action by dismissal required leave or whether leave also required in respect of adverse action by injuring the applicants in their employment, adverse action by discrimination and adverse action by coercion - construction of s 370 of the Fair Work Act 2009 (Cth)
BURLEY J - 5 June 2023

Practice and Procedure ; Industrial Law
Isser v BHP WAIO Pty Ltd [2023] FCA 580
PRACTICE AND PROCEDURE - application for relief under Pt 3-1 of the Fair Work Act 2009 (Cth) - where relief similarly sought in the Federal Circuit and Family Court of Australia (Division 2) ("FCFCOA") - whether FCFCOA proceeding associated matter - whether proceeding brought in contravention of s 32AA of the Federal Court of Australia Act 1976 (Cth) ("FCA Act")- whether discretion enlivened to transfer proceeding under s 32AB of the FCA Act - orders made
SNADEN J - 5 JUNE 2023

Insurance
FKP Commercial Developments Pty Limited v Zurich Australian Insurance Limited (No 2) [2023] FCA 582
INSURANCE - separate question - construction of design and construction professional indemnity insurance policy - extension of cover clause - a requirement that "the insured [be] legally liable in the provision of the professional services" is not a causal requirement - the provision by the insured of professional services must be a substantive element of the factual matrix in which the liability arises
JACKMAN J - 5 June 2023

Insurance
MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd [2023] FCA 581
INSURANCE - separate question - indemnity sought for claims against the insured - where notification given during the period of insurance but claims made after - whether sufficient notice given for the purposes of s 40(3) of the Insurance Contracts Act 1984 (Cth) - where notice given in relation to a problem with the combustibility of certain materials brought to light by a fire at one building and claims made in relation to replacement of similar materials in another building - whether expert opinion can constitute "facts" for the purposes of s 40(3) of the Insurance Contracts Act 1984 (Cth)
JACKMAN J - 5 June 2023

Defamation
Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
DEFAMATION - defamation proceedings - where the applicant is a very well-known Special Air Service Regiment (SASR) soldier and a Victoria Cross recipient - where 14 defamatory imputations alleged - where there are multiple print and online publications - where imputations are of the most serious kind - imputations involving murder, bullying, assault and domestic violence - where substantial damage caused to both reputation and earning capacity of the applicant - where defences include allegations of very serious criminal conduct - defence of justification or substantial truth s 25 Defamation Act 2005 (NSW) - defence of contextual truth s 26 of the Defamation Act 2005 (NSW) - where National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) applied to proceedings - whether the alleged imputations were conveyed by the publications - consideration of s 140 of the Evidence Act 1995 (Cth) and common law principles concerning the standard of proof where serious criminal conduct is alleged including Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 - consideration of whether the material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision - distinction between absence of proven motive and proven absence of motive - consideration of the effect of the passage of time on the reliability of oral testimony - consideration of the nature of circumstantial evidence - inferences in relation to the failure of a party to call a particular witness: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - principles in Browne v Dunn (1893) 6 R 67 (HL) - consideration of lies as evidence of consciousness of guilt - consideration of whether the respondents have established the substantial or contextual truth of the imputations DEFAMATION - where imputations concern the applicant’s involvement in two murders - mission to Whiskey 108 on 12 April 2009 - factual disputes - were Afghan men found in the tunnel - location of the body of EKIA56 - extensive challenges to the honesty and reliability of witnesses - where respondents have established the substantial truth of the relevant imputations DEFAMATION - incidents involving the applicant during pre-deployment training at Lancelin and Bindoon - where incidents alleged are not directly relevant to any imputation in issue - factual dispute - whether the incidents alleged in the Particulars of Truth took place - whether evidence is inadmissible on the basis that it is tendency evidence - whether applicant’s conduct constituted preparatory conduct DEFAMATION - where the imputations concern the applicant’s involvement in the murder of an unarmed Afghan male - mission to Darwan on 11 September 2012— where evidence given by local Afghan witnesses - factual disputes - whether the interpreter was sent back before the southern set of compounds was cleared - whether the unarmed Afghan male was kicked off a cliff by the applicant - whether there was an agreement between the applicant and Person 11 that the unarmed Afghan male be killed after the cliff kick - whether a throwdown was placed on the body - whether the applicant made false report about the engagement - where respondents have established the substantial truth of the relevant imputations DEFAMATION - where the imputations concern the applicant’s involvement in a murder - mission to Chinartu on 12 October 2012 - factual disputes - whether the time of engagement recorded in the OPSUM deliberately false - whether Person 12 was present on the mission - where respondents have established the substantial truth of the relevant imputations DEFAMATION - mission to Syahchow 18-20 October 2012 - where witness objects to giving evidence on the grounds of self-incrimination (s 128 of the Evidence Act 1995 (Cth)) - whether or not there are reasonable grounds for the objection - where the allegations in the Particulars of Truth are not made out DEFAMATION - where imputations concern the applicant’s involvement in a murder - mission to Fasil 5 November 2012 - factual dispute - identification evidence - where the allegations in the Particulars of Truth are not made out DEFAMATION - where the imputation concerns the applicant’s engagement in a campaign of bullying - factual dispute - whether the bullying acts set out in the Particulars of Truth occurred - consideration of what constitutes a campaign of bullying - where respondents have established the substantial truth of the relevant imputation DEFAMATION - where the imputations allege that the applicant unlawfully assaulted persons under control or containment - factual dispute - whether the applicant assaulted an Afghan male in Deh Rafshan on 15 March 2010 - whether the applicant assaulted an Afghan male in late August to early September 2012 - where respondents have established the substantial truth of the relevant imputations DEFAMATION - blue-on-blue during mission in the Chora Valley on 15 July 2021 - factual dispute - whether the applicant assaulted Person 10 post-mission - whether the applicant made the threat alleged - where the respondents have not made out the substantial truth of the relevant imputation - where the defence of contextual truth is made out DEFAMATION - where imputations concern an act of domestic violence - factual dispute - whether the applicant punched Person 17 - where the respondents have not made out the substantial truth of the relevant imputations - where the defence of contextual truth is made out DEFAMATION - where intimidation of witnesses is alleged - whether the applicant engaged in conduct that intimidated witnesses - whether the applicant colluded with witnesses - whether the applicant concealed relevant evidence and material
Besanko J - 1 June 2023

Practice and Procedure ; Administrative Law
Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578
PRACTICE AND PROCEDURE - application for extension of time and leave to appeal from summary judgment - whether appeal has prospects of success - whether adequate explanation for delay - application dismissed
THAWLEY J - 1 June 2023

Practice and Procedure ; Administrative Law
Quach v Australian Health Practitioner Regulation Agency (Notice to Produce) [2023] FCA 577
PRACTICE AND PROCEDURE - notice to produce - whether document sought are relevant - notice to produce set aside
THAWLEY J - 1 June 2023

Practice and Procedure ; Administrative Law
Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576
PRACTICE AND PROCEDURE - application for leave to appeal from summary judgment - request for adjournment - medical certificate - whether evidence sufficient to warrant grant of adjournment - adjournment refused
THAWLEY J - 1 June 2023

Taxation
Commissioner of Taxation v Wood [2023] FCA 574
TAXATION - general deduction from assessable income - whether a payment made to settle litigation years after the relevant employment ended qualifies as a general deduction from assessable income under s 8-1 of the Income Tax Assessment Act 1997 (Cth) - whether the loss or outgoing was incurred in gaining or producing assessable income - whether the loss or outgoing is of capital or of a capital nature
STEWART J - 2 June 2023

Migration
FGX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 560
MIGRATION - appeal from judgment dismissing application for judicial review of a decision not to grant the appellant a Protection visa - whether primary judge erred in finding no jurisdictional error where Tribunal did not accede to appellant's request to take oral evidence over the phone under s 246 Migration Act 1958 (Cth) - whether primary judge erred in finding no jurisdictional error where Tribunal did not consider whether the appellant was a member of a particular social group - appeal dismissed
NICHOLAS J - 2 June 2023

Practice and Procedure ; Corporations Law
Invast Financial Services Pty Ltd v Pseven International DWC LLC (No 2) [2023] FCA 564
PRACTICE AND PROCEDURE - referee appointed under s 54A of the Federal Court of Australia Act 1976 (Cth) for inquiry and report - application under r 28.67(a) of the Federal Court Rules 2011 (Cth) seeking the adoption of the referee's report in whole - report adopted in whole
YATES J - 2 June 2023

Migration
Singh v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FCA 571
MIGRATION - application for leave to appeal from a decision of the Federal Circuit Court of Australia (as it was then known) dismissing, at a show cause hearing, an application for judicial review of a decision of the Administrative Appeals Tribunal - where the applicant had sought review of a decision of a delegate of the Minister to refuse to grant the application a temporary student visa - no tenable error identified in primary judge's decision - no merit to grounds of application for leave to appeal - application for leave to appeal dismissed
WHEELAHAN J - 2 June 2023

Administrative Law
SADF v National Disability Insurance Agency [2023] FCA 557
ADMINISTRATIVE LAW - application for leave to appeal - where primary judge ordered that applicant be removed as litigation representative for daughter - whether decision is attended with sufficient doubt - whether substantial injustice would result if leave were refused - application dismissed
RANGIAH J - 2 June 2023

Practice and Procedure ; Corporations Law
ATC Insurance Solutions Pty Ltd v United Firefighters' Union of Australia [2023] FCA 566
PRACTICE AND PROCEDURE - interlocutory application - where respondent sought summary judgment on the applicant's originating application and statement of claim pursuant to s 31A Federal Court of Australia Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 (Cth) - where respondent sought strike out of applicant's statement of claim pursuant to r 16.21 Federal Court Rules 2011 (Cth) - application dismissed
O'CALLAGHAN J - 2 June 2023

Practice and Procedure ; Corporations Law
BLG23 v BLH23, in the matter of BLG23 [2023] FCA 572
PRACTICE AND PROCEDURE - security for costs of appeal - real risk that the respondent would be unable to recover costs against the appellant - long history of unpaid costs orders - prospects of success not significant - orders made for the provision of security PRACTICE AND PROCEDURE - application by a third party for leave to intervene in the appeal - application refused
GOODMAN J - 2 June 2023

Practice and Procedure ; Corporations Law
General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) [2023] FCA 556
PRACTICE AND PROCEDURE - security for costs - applicant in proceedings being wound up - whether order for security would stifle action - applicant established that those who stand behind it and those who would benefit from the litigation are also without means - consideration of what needs to be shown of those who stand behind company or who would benefit from the litigation - whether reasonable to require those who stand behind the company to provide security - an order for security would stifle the proceedings - merits of the proceedings considered - application for security refused
DERRINGTON J - 2 June 2023

Costs
Thompson v Lane (Trustee) (Costs) [2023] FCA 568
COSTS - Full Court ordered that the appellant pay the respondents' costs - second respondent sought order providing priority in the payment of its costs and for its costs to be fixed on a lump-sum basis - application granted
GOODMAN J - 2 June 2023

Taxation ; Evidence
Condon v Commissioner of Taxation [2023] FCA 561
TAXATION - appeals pursuant to s 14ZZ(1)(a) of the Taxation Administration Act 1953 (Cth) in respect of assessments made under s 167 of the Income Tax Assessment Act 1936 (Cth) - assessments made by the Commissioner applied "asset betterment method" - nature of the onus of proof taxpayer is required to satisfy under s 14ZZO(b)(i) of the Taxation Administration Act 1953 (Cth) - obligation of taxpayer to show what their assessable income was in relevant year - insufficient to attempt to establish that Commissioner's asset betterment statements were in error - taxpayer unable to establish what his assessable income was in each year of income - appeals dismissed EVIDENCE - onus of proof - taxpayer's evidence neither reliable nor credible - taxpayer's affairs characterised by undocumented, cash transactions in respect of which no records were kept - absence of corroborating or supporting evidence - taxpayer unable to establish necessary facts to prove his actual assessable income on his evidence alone
DERRINGTON J - 2 June 2023

Migration
Nagpal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 575
MIGRATION - application for extension of time to file notice of appeal from decision of Federal Circuit Court of Australia - applicant absent when matter called on for hearing - proposed ground of appeal futile - application dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth)
JACKSON J - 1 June 2023

Practice and Procedure ; Corporations Law
Shaw v The Official Trustee in Bankruptcy [2023] FCA 570
PRACTICE AND PROCEDURE - application for leave to appeal - where orders made relieving respondent from compliance with Notices to Produce - whether primary decision attended by doubt sufficient to warrant review by full court - whether applicant would endure substantial injustice unless leave to appeal were granted - where primary judge finally determined aspect of applicant's interlocutory application with respect to which documents were sought - where granting leave would be disproportionate relief - where respondent agreed to produce some of the documents sought - application to be dismissed by operation of orders upon the production of those documents
MORTIMER CJ - 1 June 2023

Human Rights; Practice and Procedure ; Costs
Tickle v Giggle For Girls Pty Ltd [2023] FCA 553
HUMAN RIGHTS - gender discrimination - where the applicant alleges unlawful discrimination in breach of s 22 of the Sex Discrimination Act 1984 (Cth) (SD Act) on the basis of gender identity within the meaning of s 5B of the SD Act - where the complaint was terminated under s 46PH(1B) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) by a delegate of the President of that Commission due to there being no reasonable prospects of the matter being settled by conciliation PRACTICE AND PROCEDURE - adjudication of four interlocutory disputes, being three interlocutory applications and a notice of objection to competency - where each arise out of s 46PO(1) of the AHRC Act - whether the Court has jurisdiction under the Federal Court Rules 2011 (Cth) to adjudicate upon the notice of objection to competency - whether the grant of extension of time is in the interests of the administration of justice - consideration of whether there is an arguable case for unlawful gender discrimination - held: the notice of objection to competency is dismissed and the applicant's extension of time application is granted COSTS - security for costs application by respondents - where the application is brought by the respondent under s 56 of the Federal Court Act 1976 (Cth) and r 19.01 of the Federal Court Rules against the applicant who is a natural person - maximum costs application by the applicant under r 40.51 - where application is brought in relation to costs of both applicant and respondents - consideration of principles guiding the exercise of the Court's discretion under r 40.51 to grant a maximum costs order - held: the respondent's security for costs application is dismissed, the applicant's maximum costs application is granted only in relation to costs of and incidental to the preparation and hearing of the competing arguments as to constitutional validity and statutory construction up to a sum of $50,000; respondents to pay the applicant's costs for all four interlocutory disputes
BROMWICH J - 1 June 2023

Industrial Law
Fair Work Ombudsman v Sushi Bay Pty Ltd [2023] FCA 548
INDUSTRIAL LAW - Fair Work Ombudsman seeking to proceed in underpayment action against insolvent corporate respondents - s 471B application for leave to proceed against companies in liquidation - application granted
WIGNEY J - 1 June 2023

Trade Marks
Firstmac Limited v Zip Co Limited [2023] FCA 540
TRADE MARKS - infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) - whether the infringing marks are substantially identical with, or deceptively similar to, the applicant's mark - defence under s 122(1)(f) and (fa) of the Act - whether respondents would obtain registration of the infringing marks if they were to apply for it on the basis of honest concurrent use - defence under s 122(1)(a) of the Act - whether the respondents are entitled to use of the "own name" defence - whether the applicant should be denied relief by reason of estoppel, acquiescence, delay or laches - application for removal of the applicant's mark pursuant to s 92(1) and s 92(4)(b) of the Act - whether the applicant did not during the relevant non-use period use its registered mark in good faith in relation to its services - claim under s 88(1) of the Act to rectify the Register of Trade Marks by cancelling the applicant's mark - whether ground in s 88(2)(c) of the Act is established - whether use of the applicant's mark is likely to deceive or cause confusion - claim under s 129 of the Act - whether the applicant's threats to bring an action were unjustified
MARKOVIC J - 29 May 2023

Migration
HWTV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 554
MIGRATION - delegate of Minister's refusal to grant Bridging E (Class WE) visa - Tribunal decision to set aside decision of delegate and remit decision to delegate - where Tribunal also made orders pursuant to s 501K of the Migration Act 1958 (Cth) - application for judicial review of Tribunal's decision and orders pursuant to s 501K of the Migration Act 1958 (Cth) - where Court substituted an anonym for the applicant's name in the proceeding - application by first respondent for summary judgment - statutory basis for anonym - where other grounds of the applicant's application for judicial review are inutile and have no reasonable prospect of success - application for summary judgment allowed.
ANDERSON J - 1 June 2023

Damages
Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567
DAMAGES - assessment of damages for economic loss - damages for economic loss awarded
BURLEY J - 1 June 2023

Migration
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 562
MIGRATION - application for leave to appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa - where visa application refused because the applicant did not have an approved nomination - application dismissed.
BURLEY J - 31 May 2023