PRACTICE AND PROCEDURE - application to set aside - dismissal of appeal for wont of prosecution - s 25(2B) Federal Court of Australia Act 1976 (Cth) - absence of any possibility of success in appeal. Held - dismissed.
Ogawa v Australian Information Commissioner (No 2) [2018] FCA 1305
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Santos v Assistant Minister for Home Affairs [2018] FCA 1296
MIGRATION - review of failure to exercise discretion - s 501 Migration Act 1958 (Cth) - whether relevant considerations not taken - whether decision illogical or irrational. Held - dismissed.
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Stock on behalf of the Nyiyaparli People v State of Western Australia (No 3) [2018] FCA 1306
NATIVE TITLE - interlocutory application to be joined as a party to claimant proceeding under Native Title Act 1993 (Cth) - where request for adjournment to produce documents refused - where conscious decision made days earlier not to produce documents - where interlocutory applicant claimed inclusion of apical ancestor in consent determination could prejudice payments under an agreement - where interlocutory application made at late stage of proceeding - where not in interests of justice to join interlocutory applicant - interlocutory application dismissed
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Luck v University of Southern Queensland (No 2) [2018] FCA 1297
PRACTICE AND PROCEDURE - application for stay of orders of Full Court of Federal Court of Australia pending outcome of application for special leave to appeal to the High Court of Australia - power under s 25 of the Federal Court of Australia Act 1976 (Cth) to order stay - whether exceptional circumstances. Held - stay granted.
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Australian Workers' Union v Registered Organisations Commissioner [2018] FCA 1300
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BOO17 v Minister for Home Affairs [2018] FCA 1302
MIGRATION - application for extension of time - where both parties are disposed to allowing extension - s 37M of the Federal Court of Australia Act 1976 (Cth) - opportunity cost to the judiciary. Held - extension allowed.
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Carrafa v Reinhold Investments Pty Ltd, in the matter of Greenfield Mowers Pty Ltd (In Liq) [2018] FCA 1252
CORPORATIONS - application for issue of search warrants under s 530C of the Corporations Act 2011 (Cth) - ex parte application - leave to have warrants issued - evidence that defendants concealed or removed property of plaintiff company in liquidation
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McGlinn v Commissioner of Taxation [2018] FCA 1275
INCOME TAX - appeal under s 14ZZ of the Taxation Administration Act 1953 (Cth) - where Commissioner of Taxation deferred applicant's tax loss pursuant to s 35-10 of the Income Tax Assessment Act 1997 (Cth) - where applicant filed a notice of objection which was disallowed - whether the role of the Court is limited to Avon Downs judicial review - where decision-maker had to determine whether a new business activity commenced in 2008 - whether decision-maker had misconceived the statutory task - whether the error could have affected the determination of the applicant's objection
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BGW16 v Minister for Immigration and Border Protection [2018] FCA 1244
MIGRATION - application for extension of time and leave to appeal - where Federal Circuit Court of Australia dismissed application for review of Administrative Appeals Tribunal decision to deny applicant protection visa at show cause hearing - no legal error identified in lower decision - application denied
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DBE17 v Commonwealth of Australia [2018] FCA 1307
MIGRATION - claim for damages for unlawful imprisonment relating to immigration detention - proceeding commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) - application by Commonwealth for strike out of claim - statutory construction of s 494AA of the Migration Act 1958 (Cth) - whether as a result of s 494AA(1)(c) the Federal Court has no jurisdiction to hear and determine claim - consideration of term "unauthorised maritime arrival" - consideration of power of High Court to remit proceedings to Federal Court - Commonwealth's application upheld
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Apotex Pty Ltd v ICOS Corporation (No 3) [2018] FCA 1204
PATENTS - where applicant seeks relief by way of declarations of invalidity and orders for revocation of claims in two patents (the 946 Patent and the 666 Patent) - where respondent is the registered owner of the two patents and denies that the claims are invalid - whether, in respect of the 946 Patent, there is a lack of inventive step, lack of novelty, the patent was obtained by false suggestion and the invention is not useful - whether, in respect of the 666 Patent, there is a lack of inventive step and a lack of novelty
PATENTS - where respondent brings a cross-claim against the applicant in which it seeks declarations to the effect that the applicant has threatened to infringe claims in the two patents - whether applicant has threatened to infringe claims in the two patents - where claims in respect of which the respondent alleges threatened infringement are the same claims which the applicant alleges are invalid - where, in respect of the two patents, the applicant admits, subject to its case on invalidity, threatened infringement in respect of certain claims - where applicant denies infringement in respect of certain claims in the two patents - where, in respect of the 666 Patent, the applicant does not admit threatened infringement of certain claims, but accepts that expert evidence establishes threatened infringement, subject to its case on invalidity
PRACTICE AND PROCEDURE - where respondent seeks injunctions, damages or an account of profits, additional damages or other relief - where issues of quantum arising from the respondent's cross-claim be heard and determined separately from, and after, all other issues in the proceeding
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Squadron Resources Pty Ltd v Highlake Resources Pty Ltd, in the matter of Highlake Resources Pty Ltd [2018] FCA 1292
CORPORATIONS - consideration of an application seeking an order pursuant to s 588FM of the Corporations Act 2001 (Cth) for an extension of time for registration for the purposes of s 588FL(2)(b)(iv) - whether it is just and equitable to make an order granting an extension of time for registration for the purposes of s 588FL(2)(b)(iv) - where the failure to register was 'accidental' or 'due to inadvertence' pursuant to s 588FM(2)(a)(i) and that the relief sought is otherwise just and equitable in the circumstances
Held: relief granted
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Chen v Diversipak Pty Ltd (in liq) [2018] FCA 1314
CORPORATIONS - application for leave under s 471B of the Corporations Act 2001 (Cth) to commence proceedings against company in liquidation
TRADE MARKS - application for an interim injunction preventing liquidator of company from selling company goods - where applicant claims that the goods infringe her registered trade mark
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Mohammed v Minister for Immigration and Border Protection [2018] FCA 887
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ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141
MIGRATION - appeal from Federal Circuit Court - whether Tribunal ignored or failed to consider evidence - where evidence not relevant to particular issue - no jurisdictional error
MIGRATION - where Tribunal found appellant may be detained for short period if returned to Sri Lanka - consideration of 'intentionally inflicted' - where Tribunal considered nature of prison conditions and evaluated nature and extent of harm to appellant - no jurisdictional error - appeal dismissed
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BUD17 v Minister for Home Affairs [2018] FCAFC 140
MIGRATION - appeal from the Federal Circuit Court of Australia - where Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal - whether jurisdictional error - where Tribunal rejected appellant's submission or claim on the basis there was no material supporting that submission - where material did support submission - inference Tribunal overlooked critical material - appeal allowed
PRACTICE AND PROCEDURE - application for an extension of time to appeal from orders of the Federal Circuit Court - where delay substantial - where delay explained - where the proposed appeal has merit - application granted
PRACTICE AND PROCEDURE - application for leave to rely on grounds not raised below - where appellant was not legally represented in Federal Circuit Court - where grounds have merit - where no real prejudice to the respondent in granting leave - leave granted
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DRV16 v Minister for Immigration and Border Protection [2018] FCA 1318
MIGRATION - extension of time - whether there is merit in the appeal
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Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139
INDUSTRIAL LAW - Pt 2-4 of the Fair Work Act 2009 (Cth) ("FW Act") - the process for the making and approval of a single-enterprise agreement which is not a greenfields agreement ("single-enterprise (non-greenfields) agreement") under Div 4 of Pt 2-4 of the FW Act - approval of a single-enterprise (non-greenfields) agreement by the Fair Work Commission ("FWC") under s 186(1) of the FW Act - the nature of the requirement under s 172(2)(a) of the FW Act that an employer may make a single-enterprise (non-greenfields) agreement "with employees who are employed at the time the agreement is made and who will be covered by the agreement" - the requirement under s 186(2) of the FW Act that in approving a single-enterprise (non-greenfields) agreement the FWC be satisfied that "the agreement has been genuinely agreed to by the employees covered by an agreement" - the nature and content of the statutory task of the FWC under s 186(2)(a) of the FW Act - whether the FWC fell into jurisdictional error in assessing whether the relevant single-enterprise (non-greenfields) agreement ("Agreement") had been "genuinely agreed to" within the meaning of s 186(2)(a) of the FW Act by taking into account an irrelevant consideration, namely whether or not employees were "covered" by the Agreement at the time it was made in accordance with s 172(2)(a) of the FW Act - whether the FWC misconstrued s 186(2)(a) in determining that the relevant employees were not "covered" by the Agreement
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EHB17 v Minister for Home Affairs [2018] FCA 1280
MIGRATION - application for an extension of time to appeal from orders of the Federal Circuit Court of Australia - where the Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority - where the grounds of review were without particulars - application for extension of time dismissed
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DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270
PRACTICE AND PROCEDURE - recusal application -apprehended bias and actual bias on the ground of pre-judgment alleged based on interlocutory decision refusing leave to amend pleadings and joinder of additional respondents - observations as to potential dangers in receiving sworn evidence in support of disqualification applications - observations as to judge's duty to sit where no proper basis for recusal - discussion of relevant principles including attributes of fair-minded lay observer in applying test for apprehended bias - where part of the judge's duty and function is to separate the relevant from the irrelevant, to disregard allegations without evidentiary foundation, and to ensure a fair trial for all parties - where no findings of fact or credit made in interlocutory decision - where no apprehended bias by reason of findings which put aside assertions without evidentiary foundation - where no final opinion expressed in the interlocutory decision on any ultimate fact or issue - where Court's duties to unrepresented litigants do not extend to obtaining legal representation - application dismissed
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