MIGRATION - whether Federal Circuit Court of Australia judge erred in dismissing application for review of decision of Tribunal to affirm decision to refuse protection visa - whether Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) - whether appellant should have been invited to respond to issue of whether he could provide "surety" to obtain bail if placed in custody on return to Sri Lanka - appeal dismissed
AQP15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1103
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Kemp v Minister for Immigration and Border Protection [2018] FCA 1106
MIGRATION - where the Assistant Minister determined not to revoke a decision under s 501(3A) of the Migration Act 1958 (Cth) (Act) to cancel the applicant's visa pursuant to s 501CA(4) of the Act - where the applicant alleged that the Assistant Minister exercised his discretion in a manner that was legally unreasonable and took into account an irrelevant consideration - where the applicant further alleged that the Assistant Minister denied the applicant procedural fairness - whether the Assistant Minister's decision was affected by jurisdictional error - application allowed.
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Ahmed v Minister for Immigration and Border Protection (No 2) [2018] FCA 1112
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Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
MIGRATION - application for partner visa - appeal against dismissal by Federal Circuit Court of application for judicial review of Tribunal decision - where Tribunal sent appellant a letter pursuant to s 359A of the Migration Act 1958 (Cth) (the Act) - where Tribunal extended period during which to respond to s 359A letter in accordance with s 359B(4) and reg 4.18A(4) and calculated the last day for response as 21 August 2014 - where appellant responded on 22 August 2014 - revocation of offer to attend hearing at the Tribunal under s 360 of the Act for failure to respond to s 359A letter within statutory time limit - effect of s 363A of the Act - whether Tribunal miscalculated length of prescribed further period under s 359B(4) of the Act- whether Tribunal erred by not conducting a hearing in accordance with s 360 of the Act
MIGRATION - requirements for s 359A letter - whether the Tribunal failed to give the appellant clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review - degree of particularity required in s 359A letter
STATUTORY INTERPRETATION - interpretation of s 359B(4) of the Act -- interaction of s 359B(2) and s 359B(4) of the Act, and regs 4.17 and 4.18A of the Migration Regulations 1994 (Cth) (the Regulations) - whether primary Judge erred in interpretation of reg 4.18A(4) - validity of reg 4.18A(4) of the Regulations - whether reg 4.18A(4) led to manifest arbitrariness or a result inconsistent with the intention of s 359B(4) of the Act - effect of invalidity of regulation prescribing statutory time limit - whether power under the Act is dependent on existence of prescription by regulation - whether time requirement can be read into s 359B(4) in the absence of prescription by regulation
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AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110
PRACTICE AND PROCEDURE - interlocutory application for reinstatement of an appeal from the Federal Circuit Court to the Federal Court of Australia - where the appeal had been dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) because of a failure by the applicant to attend a hearing relating to the appeal - where the Court has power to set aside such orders under s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) - where the applicant said he was unaware of the hearing date - whether the order should be set aside - consideration of whether the applicant has provided an acceptable explanation for his failure to appear - consideration of whether there is merit in the appeal
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Australian Securities and Investments Commission v AGM Markets Pty Ltd [2018] FCA 1119
CORPORATIONS - application to appoint a provisional liquidator to corporate defendants - alternative application to appoint an interim receiver to assets of corporate defendants - where applicant seeks winding up of corporate defendants in main proceedings - where assets of corporate defendants are the subject of freezing orders - information disclosure orders - applications dismissed
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Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 2) [2018] FCA 1109
PATENTS - where relief claimed in connection with the infringement of claims in a patent - where liability determined separately from, and in advance of, all issues of the quantum of any pecuniary relief - whether respondents infringed claims in the patent - where all but one respondent, being the fourth respondent, admit infringement of claims in the patent - whether applicants have established that the fourth respondent has infringed the claims in the patent - whether fourth respondent was a direct infringer because it kept the infringing tools at its premises for one or more of the purposes of falling within the definition of "exploit" in the Patents Act 1990 (Cth) - whether fourth respondent is a direct infringer because it authorised the infringing acts by the first respondent - whether fourth respondent is liable as an indirect infringer because it was a joint tortfeasor with the other respondents - where validity of the patent is not in issue
PRACTICE AND PROCEDURE - whether proceeding constitutes an abuse of process - whether proceeding should be permanently stayed or dismissed - where onus on the respondents to establish an abuse of process - consideration of the doctrine of abuse of process - consideration of the inherent jurisdiction of a superior court to prevent an abuse of process as described in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 - consideration of the categories of abuse of process as described in Rogers v The Queen [1995] HCA 42; (1994) 181 CLR 251 - where categories of abuse of process are not closed - where estoppel is a distinct doctrine from abuse of process, although the doctrines may overlap on the facts of a particular case - where no Anshun or other estoppel
PATENTS - whether second applicant was the exclusive licensee of the patent prior to a particular date
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Nandutu v University of Sydney [2018] FCA 1118
PRACTICE AND PROCEDURE - transfer of proceedings to the Supreme Court of New South Wales - where the proceeding in the Federal Court related to another proceeding pending in that Supreme Court and more appropriate that the proceeding pending in the Federal Court be determined by that Supreme Court - in the alternative, in light of the otherwise predominantly non-federal nature of a substantial part of the proceedings in the Federal Court, more appropriate that the proceeding be determined by that Supreme Court
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Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108
NATIVE TITLE - determination of native title by consent pursuant to s 87 of Native Title Act 1993 (Cth) - appropriate to make orders
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OPUS Group Limited, in the matter of OPUS Group Limited [2018] FCA 959
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 - proposed redomiciliation from Australia to Bermuda - orders made
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Australian Competition and Consumer Commission v ACM Group Limited (No 2) [2018] FCA 1115
CONSUMER LAW - misleading or deceptive conduct - application by Australian Competition and Consumer Commission and Australian Securities and Investments Commission alleging misleading or deceptive conduct by a debt collecting agency - allegation that agency misled particular debtors by making written and/or oral representations concerning, inter alia the likelihood, imminence and possible ramifications of the agency commencing court proceedings to recover the relevant debts if they were not paid - whether misleading or deceptive conduct established.
CONSUMER LAW - allegation that debt collection agency used undue harassment and coercion by, inter alia, threatening legal proceedings and threatening other consequences - whether unduly harassing or coercive conduct established.
CONSUMER LAW - allegation of unconscionable conduct by debt collection agency - whether unconscionable conduct established.
CONSUMER LAW - whether alleged contraventions by debt collection agency fell to be determined by relevant consumer protection provisions in the Australian Consumer Law or in the Australian Securities and Investments Commission Act 2001 (Cth) - whether agency provides "a financial service" as defined in the latter Act.
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Hayes v Pioneer Credit Acquisition Services Pty Ltd [2018] FCA 1113
BANKRUPTCY - appeal from Federal Circuit Court where sequestration order was made against appellant - where appellant was removed from courtroom - whether there was denial of procedural fairness - right to fair hearing - appeal allowed
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Graham v Minister for Immigration and Border Protection (No 2) [2018] FCA 1116
COSTS - where the Minister successfully resisted an application for judicial review of a decision to place the applicant in immigration detention in the Goulburn Correctional Centre - whether an order for costs should be made in the Minister's favour
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Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105
INDUSTRIAL LAW - imposition of civil penalties for contraventions of s 500 of the Fair Work Act 2009 (Cth) - assessment of seriousness of contraventions - little or no significant economic consequences resulting from contravening conduct - contraventions deliberate - contravening conduct accompanied by defiant or mental attitude - no evidence of contrition or correction - pressing need for general deterrence
COSTS - whether order for costs against applicant justified under s 570 of the Fair Work Act 2009 (Cth) - whether proceedings commenced or continued against a respondent vexatiously or without reasonable cause - whether an unreasonable act or omission caused the respondent to incur costs
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Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd (No 2) [2018] FCA 1125
CONSUMER LAW - conduct that was likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law - conduct that was liable to mislead the public as to the characteristics or suitability for their purpose of services in contravention of s 34 of the Australian Consumer Law - relief - whether declarations should be made - pecuniary penalty - number of contraventions - injunction - compliance program - whether corrective publication order should be made
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DWE18 as litigation representative for DWD18 v Minister for Home Affairs [2018] FCA 1121
PRACTICE AND PROCEDURE - application for mandatory interlocutory injunction - applicant an adolescent girl residing in the Republic of Nauru (Nauru) - applicant a refugee - applicant's self-harm - applicant's limited eating and drinking - applicant requiring urgent medical attention not available to her on Nauru - applicant at imminent risk to her health, both in the short term and in the long term - whether necessary for all members of the applicant's family to accompany her to a child and adolescent medical facility in Australia for investigation of the applicant's deteriorating health, and any treatment that may be identified as necessary or appropriate
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Young v State of Victoria (Department of Education and Training) [2018] FCA 1124
DISCRIMINATION - disability discrimination - application by litigation representative for approval of a settlement under r 9.70 of the Federal Court Rules 2011 (Cth) - whether the settlement is in the best interests of the applicant - consideration of relevant factors, including the opinion of independent counsel - settlement approved
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Pursuit Minerals Limited, in the matter of Pursuit Minerals Limited [2018] FCA 1127
CORPORATIONS - application under s 1322(4) of the Corporations Act 2001 (Cth) to validate on-sale by vendor shareholders without disclosure - where purported cleansing notice invalid - where five day rule not satisfied - where omission by company inadvertent
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Webb v GetSwift Limited (No 2) [2018] FCA 994
REPRESENTATIVE PROCEEDINGS - Importance of opt out process and need for complete, disinterested advice to group members to allow informed decision as to opt out free from the appearance of conflict - restraint on contact by solicitors who acted in promoting a stayed proceeding with group members to preserve the integrity of the opt out process in non-stayed proceeding
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Webb v GetSwift Limited (No 3) [2018] FCA 1133
REPRESENTATIVE PROCEEDINGS - common fund order - order made when the opportunity afforded to group members to later opt out of the proceeding - no need for prior to notice to group members when this course would cause multiple notices, unnecessary expense and further delay
COSTS - indemnity costs orders against a respondent to an interlocutory application where conduct caused unnecessary costs contrary to the overarching purpose -lump sum costs - where evidence as to the reasonableness of costs claimed was not in strict compliance with Practice Note but is sufficient to establish costs claimed were reasonably incurred on a "broad brush" approach to quantification - order made
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