MIGRATION - application to review a decision of the Administrative Appeals Tribunal - refusal to revoke mandatory cancellation of visa by delegate under s 501CA(4) of Migration Act 1958 (Cth) - application of Ministerial Direction No 65 - whether Tribunal erred in failing to consider the significance of the applicant's claim to fear harm and non-refoulement obligations in circumstances where applicant could apply for protection visa - whether BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 distinguishable because of identity of decision-maker - whether Tribunal erred in failing to consider applicant's evidence about conduct in immigration detention - where High Court decided in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 that s 501(3A) not invalid for the reason that it conferred judicial power on the Minister - held BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 not distinguishable - decision of the Tribunal set aside for jurisdictional error of kind identified in that case
FKP18 v Minister for Immigration and Border Protection [2017] FCA 1555
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Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182
INDUSTRIAL LAW - whether provision of enterprise agreement providing that an employer may require an employee to work reasonable overtime is capable of being contravened by the employer for the purpose of s 50 of the Fair Work Act 2009 (Cth) - principles of construction of an enterprise agreement
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Morris v McConaghy Australia Pty Ltd (No 5) [2018] FCA 1582
COSTS - whether indemnity costs should be ordered against respondent - where respondent successfully defended application for deemed service - where applicant not at fault for ineffective foreign service
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Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588
SUPERANNUATION - whether error of law in the determination of the Superannuation Complaints Tribunal (Tribunal) under the Superannuation (Resolution of Complaints) Act 1993 (Cth) - approach of the Tribunal to the determination of whether the trustee's decision was unfair or unreasonable - whether lack of procedural fairness on the part of the trustee of itself made the trustee's decision unfair or unreasonable - whether error of law on the ground of no evidence in the statement of the Tribunal that there was no evidence that the applicant had an expectation of future financial support from the deceased - whether error of law in the Tribunal not deciding whether the applicant had repaid a debt to the deceased - whether the Tribunal gave determinative effect to the deceased's will - whether error of law in that respect - whether Court should make findings of fact that the applicant had an expectation of future financial support from the deceased and that the applicant was the only party with an expectation of future financial support - appropriate orders - whether Court should order that the entirety of the death benefit be paid to the applicant - appropriate costs order where submitting appearances
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Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) FCA [2018] 1586
CORPORATIONS - application for a temporary stay of the winding up of a company and the receivership of a trust - where not all creditors and contributories of the company had been notified of the application for a stay - where the nature of the proposal for refinancing was unknown - where the director of the company had had a significant time to negotiate a refinancing proposal without success - where the company was insolvent - whether the stay should be granted - application dismissed.
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Fair Work Ombudsman v Foot & Thai Massage Pty Ltd [2018] FCA 1584
PRACTICE AND PROCEDURE - application under r 30.01 of the Federal Court Rules 2011 (Cth) for the Court to determine certain questions separately - application dismissed, with no order as to costs
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BGA15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1589
MIGRATION - appeal from judgment dismissing application for judicial review of migration decision - whether applicant for review denied a meaningful hearing because of inadequate interpretation - applicant electing to conduct hearing in English rather than use interpreter provided by Tribunal - no admissible evidence of misinterpretation - applicant's election to continue in English based on legal advice - applicant assured Tribunal he was comfortable proceeding in that way - whether applicant disadvantaged because of lack of English proficiency - affidavit containing interpretations from Urdu to English inadmissible - no appealable error demonstrated
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Taylor (Liquidator) v CJ & KL Bond Super Pty Ltd (Trustee), in the matter of CJ & KL Bond Pty Ltd (in liq) [2018] FCA 1430
CORPORATIONS - application for appointment of receiver and manager under s 57 of the Federal Court of Australia Act 1976 (Cth) - application for appointment required to avoid consideration of s 126K of the Superannuation Industry (Supervision) Act 1993 (Cth) - application granted.
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Aussie Hoist Property Pty Ltd v Mulqueen (No 2) [2018] FCA 1600
COSTS - application by the defendant for a lump sum costs order - whether lump sum costs are appropriate - whether the costs claimed by the parties were fairly and reasonably incurred - order for lump sum costs for reduced amounts made and after offsetting costs payable to the plaintiff
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Lendlease RL (Rowville) Pty Ltd v Lendlease Capital Services Pty Ltd (No 2) [2018] FCA 1601
CORPORATIONS - scheme of arrangement - second court hearing - application for approval
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Smith v Minister for Home Affairs [2018] FCA 1594
MIGRATION - application for judicial review of decision of the Minister, acting personally, not to revoke the decision to cancel the applicant's visa - Minister not satisfied that there was another reason why the original decision should be revoked - whether failure on the part of the Minister to inquire - whether failure on the part of the Minister to take into account relevant considerations - whether Minister's reasons or decision legally unreasonable
EVIDENCE - judicial review - where ground of unreasonable failure to inquire - whether evidence admissible to prove not only that the inquiry, if made, would have yielded a useful result, but also to prove the truth of the result of such an inquiry - whether use of the material should be limited pursuant to s 136 of the Evidence Act 1995 (Cth)
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Singh v Minister for Home Affairs [2018] FCA 1596
MIGRATION - where the Minister decided personally to cancel the applicant's visa under s 501, Migration Act 1958 (Cth) - where the Administrative Appeals Tribunal found it lacked jurisdiction to review the Minister's decision - where applicant instituted appeal on question of law purportedly under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) seeking to stay the Tribunal's decision - where appeal in substance challenged the Minister's decision - whether Minister made the decision personally -- whether appeal against Minister's decision precluded by s 43C, Administrative Appeals Tribunal Act 1975 (Cth) - where no question of law identified in any event - appeal dismissed as incompetent
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AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
MIGRATION - application for leave to appeal from a decision of the Federal Circuit Court of Australia refusing to reinstate an application for judicial review dismissed for non-appearance - whether leave to appeal should be granted - whether the primary judge's exercise of discretion under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) miscarried due to the primacy given to the merits of the substantive application and a failure to consider delay and prejudice - whether the new grounds sought to be raised on appeal before this Court have sufficient merit to warrant leave
PRACTICE AND PROCEDURE - non-appearance by an applicant - application dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules - nature of the discretion afforded under r 16.05 to set aside orders made in the absence of a party
Held: application dismissed
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Wavehill (on behalf of the Wubalawun Group) v Northern Territory of Australia [2018] FCA 1602
NATIVE TITLE - consent determination - requirements under s 87 of the Native Title Act 1993 (Cth) - agreement of parties - determination of native title by consent.
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Folkestone Limited, in the matter of Folkestone Limited (No 2) [2018] FCA 1593
CORPORATIONS - scheme of arrangement - second court hearing - application for approval
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Ibrahim v Minister for Home Affairs [2018] FCA 1592
ADMINISTRATIVE LAW - application for judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister) - where application for judicial review is before this Court in its original jurisdiction by reason of s 476A of the Migration Act 1958 (Cth)
MIGRATION - where Assistant Minister made a decision to set aside a decision under s 501CA(4) of the Migration Act to revoke a cancellation of the applicant's subclass 100 Partner (Migrant) visa under s 501(3A) and to cancel the visa - where applicant has a substantial criminal record - where no dispute that the applicant did not pass the character test - where Assistant Minister considered the national interest and, in that context, the seriousness of the applicant's criminal conduct and how it was dealt with by the courts, the risk of the applicant reoffending and the possible harm to the Australian community were he to do so - where applicant claims that he faces a risk of harm if he is returned to Nigeria
ADMINISTRATIVE LAW - whether Assistant Minister failed to proceed on a correct understanding of the law and the legal consequences of the decision - whether Assistant Minister erred in failing to appreciate the difference between an assessment of the facts against the criteria for a protection visa and taking account of, for the purposes of exercising a discretion under s 501BA(2) of the Migration Act, the risk of harm to a person if he is returned to the country of his nationality - whether Assistant Minister failed to understand that even if, on a protection visa application, it is found that Australia owed protection obligations to the applicant the application for such a visa might be refused, having regard to s 36(1B) of the Migration Act, s 36(1C) of the Migration Act, or the public interest criteria in cl 4001 of Schedule 4 of the Migration Regulations 1994 (Cth)
ADMINISTRATIVE LAW - whether Assistant Minister misunderstood his power to alleviate or eliminate the disadvantages he acknowledged in proceeding under s 501BA(2) of the Migration Act, particularly in terms of natural justice - whether Assistant Minister failed to appreciate that he could have provided natural justice in the course of his decision-making process under s 501BA(2), or at least sought updated submissions, and whether, if so, such a misunderstanding amounted to a jurisdictional error - whether Assistant Minister's decision to proceed under s 501BA(2) without according natural justice to the applicant, or at least an opportunity to make submissions, was unreasonable within the principles identified by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
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Popeye Bidco Pty Limited (Receivers and Managers Appointed) v Intermediate Capital Asia Pacific 2008 GP Limited (No 3) [2018] FCA 1597
COSTS - application for an order for costs against non-parties to a proceeding - whether it is appropriate for an order for the payment of costs by non-parties to be made under s 43 of the Federal Court of Australia Act 1976 (Cth) - where application made before a final determination of the substantive issues - where application involves the costs of an interim injunction obtained by the applicants ex parte, and the unsuccessful attempt by the applicants to have the injunction continued as an interlocutory injunction - where quantum of costs claimed is considerable - consideration of the principles stated in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 - whether non-parties were insolvent or impecunious or "men of straw" - whether non-parties played an active part in the conduct of the litigation - whether non-parties have an interest in the litigation - whether interests of justice require an order for the payment of costs by non-parties
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Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595
CONSUMER LAW whether respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand painted, or made, by an Aboriginal person and/or were made in Australia where the place of origin of the products, Indonesia, was not disclosed where all but one product line comprised objects of cultural significance to Aboriginal peoples where no dispute as to the literal truth of express representations scope of the surrounding circumstances to be taken into account in determining whether false or misleading representations were made whether surrounding circumstances includes the way the products were presented in retail outlets by third parties, the characteristics of other products for sale in those outlets, and the products price placement vis a vis other products - where implied false or misleading representations upheld finding that all the products breached s 18 and subs 29(1)(a) and (k), Australian Consumer Law finding that boxed boomerangs, didgeridoos and message stones breached s 33 of the Australian Consumer Law
CONSUMER LAW discussion of the principles applicable to ss 19, 29 and 33 of the Australian Consumer Law discussion of the principles applicable to implied representations
CONSUMER LAW identification of class of persons to whom the implied representations were made where class included international tourists, interstate tourists, and those seeking to purchase a gift where international tourists may have a low degree of familiarity with the Aboriginal art and cultural practices but would recognise the association between such objects and their artwork, symbols and designs, on the one hand, and Aboriginal art and culture, on the other hand
EVIDENCE whether contextual evidence of the retail environment in which the products sold admissible where ACCC submitted context was confined to the products themselves, together with the images and representations made on the products and their packaging where respondent had no control over manner in which products presented by retailers whether evidence sufficient to establish the price differential and other aspects of the retail environment relied upon by the respondent
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Fairfax Media Limited, in the matter of Fairfax Media Limited [2018] FCA 1610
CORPORATIONS - scheme of arrangement - application for order pursuant to s 411 of the Corporations Act 2001 (Cth) that company convene meeting of members, and ancillary orders
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PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd [2018] FCA 1587
DAMAGES - damages for wrongful repudiation of agreement by cross-respondent - reliance damages - where agreement would not have been profitable for cross-claimant - where cross-claimant not likely to recoup all of its expenditure - where not possible to determine what proportion of cross-claimant's expenditure would have recouped but for repudiation - reliance damages assessed by reference to cross-claimant's loss of opportunity to recoup its expenditure - cross-respondent awarded 30% of its expenditure in respect of loss of opportunity
DAMAGES - damages for copyright infringement under s 115 of the Copyright Act 1968 (Cth) - where damages under s 115(2) assessed at $3,000 - whether there should be an award of additional damages under s 115(4) - where there was a reckless disregard for rights of cross-claimant as copyright owner or a person who had strong grounds for asserting ownership of copyright - additional damages assessed at $50,000
TRADE MARKS - account of profits - where registered trade mark infringed by respondent by offering to supply and supplying applications for use on electronic devices - where trade mark used in relation to sales made both in Australia and other countries - whether profits recoverable by registered owner in respect of sales made in other countries - whether sales made in other countries shown to be attributable to infringing use of registered trade mark in Australia
TRADE MARKS - account of profits - whether respondent entitled to allowance for general business overheads when calculating profits payable to applicant for infringement of registered trade mark - where no evidence to show what proportion of overheads attributable to relevant profit - no allowance made
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