TAXATION - where primary judge dismissed an appeal from the Administrative Appeals Tribunal affirming Commissioner of Taxation's decision to disallow objections upon the basis of fraud or evasion, and to impose substantial penalties and shortfall interest charges - no error on the part of the primary judge established - leave refused to run an additional ground of appeal not run before the primary judge - appeal dismissed with costs
Buzadzic v Commissioner of Taxation [2024] FCAFC 50
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Watson & Co Superannuation Pty Ltd v Dixon Advisory and Superannuation Services Ltd (Settlement Approval) [2024] FCA 386
REPRESENTATIVE PROCEEDINGS - settlement approval - where proposed settlement amount represents substantially all of the funds that the respondents have available to satisfy judgment - where settlement deed seeks to preserve ability of group members to make claims to the Australian Financial Complaints Authority - settlement approved
COSTS - whether costs incurred by litigation funder in stayed proceedings should be ordered in relation to settlement in this proceeding - where only some work of enduring benefit - limited costs awarded
INSOLVENCY - application by deed administrators for directions under s 90-15 of Div 90 of Sch 2 (Insolvency Practice Schedule (Corporations)) to the Corporations Act (2001) (Cth) - where application made in connection with approval of a settlement in representative proceedings - application for direction granted
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Trygve, in the matter of Pacquola Group Pty Ltd (Administrator Appointed) [2024] FCA 393
BANKRUPTCY AND INSOLVENCY - Application under s 90-15 of the Insolvency Practice Schedule (Corporations) contained in Schedule 2 of the Corporations Act 2001 (Cth) - where a resolution was passed in favour of a deed of company arrangement proposal - where administrator subsequently identified that the wording of the deed of company arrangement proposal attached to the notice of meeting gave rise to three fundamental problems - where problems are said to undermine the effectiveness of the deed of company arrangement, could unintentionally put employee creditors in a worse position and mean that the deed of company arrangement would not conform with the Corporations Act 2001 (Cth) - where it is appropriate for the court to make the directions sought.
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BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387
MIGRATION - visas - appeal from orders of a judge of the Federal Circuit Court and Family Court of Australia (Division 2) dismissing application for judicial review - where the Appellant was granted a Global Special Humanitarian visa in October 2010 - where delegate subsequently cancelled the Appellant's visa pursuant to s 116(1AA) of the Migration Act 1958 (Cth) (the Act) - where the Administrative Appeals Tribunal affirmed the delegate's decision - whether the primary judge erred in construing the meaning of the term "identity" in s 116(1AA) of the Act - whether the primary judge erred in finding that procedural fairness was not required to be afforded to the Appellant's half-brother in circumstances where the half-brother held a visa as a dependent member of the Appellant's family unit - whether the primary judge erred in failing to find that the Tribunal had failed to consider the mandatory legal consequences of its decision - appeal dismissed
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Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 6) [2024] FCA 379
PRACTICE AND PROCEDURE - interlocutory applications seeking competing orders for distribution of proceeds of sale - where equitable right of exoneration applies in trustee's favour - where trustee's application granted
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Hippi on behalf of the Gamilaraay People v State of Queensland [2024] FCA 380
NATIVE TITLE - s 84(5) Native Title Act 1993 (Cth) - application to be joined as a party to Native Title determination application -prima facie interest in the land and waters established - finding that joinder applicants sought joinder for purpose of acting as representatives to assert Native Title rights on behalf of other people - delay in filing application for joinder - discretionary considerations not sufficient to allow application - application for joinder dismissed
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O'Brien v Caboolture Aero Club Inc [2024] FCA 392
PRACTICE AND PROCEDURE - application for leave to amend statement of claim - whether there is sufficient explanation for the delay - whether amendments are 'hopeless' and could not succeed - whether there is prejudice suffered by the respondents - whether issues arise out of the same substratum of facts - amendments required to determine the real questions in controversy - sufficient explanation for delay - amendments allowed
PRACTICE AND PROCEDURE - application for Court-ordered mediation - lack of consent to attend mediation - where significant costs have been incurred - proceedings referred to mediation
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Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 2) [2024] FCA 385
NATIVE TITLE - application to be joined as a respondent party to a native title determination application pursuant to s 84(5) of the Native Title Act 1993 (Cth) - whether joinder applicant is person whose interest may be affected by determination of native title - whether joinder applicant acting in representative capacity - whether in interests of justice to allow joinder - whether adequate justification for delay - where existing parties prejudiced if joinder allowed
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Petrovsky v Southern Adelaide Local Health Network Inc [2024] FCA 396
PRACTICE AND PROCEDURE - application for interlocutory relief - whether serious question to be tried of a joint venture agreement - whether serious question to be tried of a licence - whether serious question to be tried of unconscionable conduct - whether balance of convenience favoured interlocutory relief - whether damages an adequate remedy - application for interlocutory relief dismissed
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Deputy Commissioner of Taxation v AGJ Businesses Pty Ltd [2024] FCA 400
CORPORATIONS -- where winding up orders have been made and the director of the company in liquidation purports to apply in the company's name to set aside those orders pursuant to s 482 of the Corporations Act 2001 (Cth), s 35A of the Federal Court of Australia Act 1976 (Cth) and rr 3.11, 39.04 or 39.05 of the Federal Court Rules 2011 (Cth)-- where the sole director / shareholder seeks to bring the application in the company's name pursuant to s 198G(3)(b) of the Corporations Act -- where it has not been demonstrated that it is arguable that the company is solvent -- whether application should be granted -- Held: application dismissed.
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Crocker, in the matter of Crocker v Minister for Centrelink [2024] FCA 399
PRACTICE AND PROCEDURE - application for leave to institute proceeding where applicant subject to vexatious proceeding order - whether application for leave and supporting affidavit substantially comply with statutory requirements - whether proposed proceeding is a vexatious proceeding - where affidavit does not list all other proceedings instituted and does not disclose reasons for delay in making application - where proposed proceeding is without reasonable grounds and an abuse of process - application dismissed
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Australian Securities and Investments Commission v NGS Crypto Pty Ltd [2024] FCA 373
CORPORATIONS - investigations by Australian Securities and Investments Commission - ex parte application for appointment of receivers, asset preservation, disclosure and travel restriction orders - whether it is necessary or desirable that orders be made - where defendants' conduct is in relation to blockchain mining - interim orders made
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FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397
MIGRATION - application for review of decision of Administrative Appeals Tribunal not to revoke mandatory cancellation of Applicant's visa - where Applicant's wife (who was also a witness in the Tribunal hearing) acted as the Applicant's advocate at Tribunal hearing in circumstances where the Applicant is illiterate and speaks very little English - whether there was a denial of natural justice, an unreasonable exercise of power and/or a misunderstanding of a statutory discretion
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Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 7) [2024] FCA 381
PRACTICE AND PROCEDURE - application by second defendant for evidentiary rulings - where a number of rulings agreed by the parties and other rulings held over - application by second defendant to strike out certain paragraphs of statement of claim - where Full Court in Mawhinney v Australian Securities and Investments Commission (2022) 294 FCR 375 held that an order may be made under s 1101B(1) of the Corporations Act 2001 (Cth) based on the contravention of another person - whether plaintiff's statement of claim gave clear notice and proper particulars of each contravention alleged and of the connection between the second defendant and each such contravention, either by way of his involvement in the contravention in the sense described in Yorke v Lucas (1985) 158 CLR 661 or otherwise - where plaintiff did not allege that the second defendant was accessorily liable for companies' alleged contraventions of the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cth) - where the issue to be decided at trial will be whether each of the factual matters pleaded in relation to the second defendant's involvement is sufficient to establish the requisite nexus between the relevant contravention and the orders sought against him under s 1101B(1), such that the Court should in the exercise of its discretion grant the injunctive relief sought by the plaintiff - whether pleading of implied representations "embarrassing" within the meaning of rule 16.21(1) of the Federal Court Rules 2011 (Cth) - whether in other respects claims were sufficiently particularised - strike out application dismissed
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Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401
INDUSTRIAL LAW - general protections - adverse action - workplace rights - whether employee had or exercised workplace rights - whether alleged workplace rights were workplace rights within the meaning of s 341(1)(c) of the Fair Work Act 2009 (Cth) (FW Act) - consideration of the meaning of "complaint" or "inquiry" an employee is "able to make" "in relation to" their employment - some alleged complaints and inquiries found to be the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act - whether employer took adverse action against employee - where employee was suspended from employment - suspension and related actions constituted adverse action within the meaning of s 342 of the FW Act - whether adverse action taken because of the exercise of workplace rights - reverse onus of proof under s 361(1) of the FW Act - evidence of decision makers as to reasons for taking adverse actions accepted - where satisfied none of the established adverse actions were taken because of the exercise of any of the established workplace rights - reverse onus discharged - general protections claims dismissed
INDUSTRIAL LAW - alleged contravention of FW Act for failing to provide employee records pursuant to reg 3.42 of the Fair Work Regulations 2009 (Cth) (FW Regulations) - where pleaded contravention of reg 3.42(1) for failing to provide employee records pursuant to the employee's requests - where employee records were provided - where employee instead advanced contravention of reg 3.42(3) concerned with time frame for providing employee records - where reg 3.42(1) and reg 3.42(3) are different civil penalty provisions - where employer contends employee should not be allowed to advance claim for contravention different to his pleaded case - where employee did not seek to amend pleadings - employee held to pleaded case - contravention not established
INDUSTRIAL LAW - alleged contravention of FW Act for failing to provide payslips pursuant to s 536(1) of the FW Act - where contravention admitted by the employer - penalties for contravention to be determined
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Clubb (administrator), in the matter of Town Tavern Blacktown Pty Limited (administrators appointed) (receivers and managers appointed) [2024] FCA 405
CORPORATIONS - voluntary administration of company operating a business together with a group of companies - application under s 439A of the Corporations Act 2001 (Cth) to extend convening period of the second meeting of the creditors for six months - application for making of a "Daisytek" order and other ancillary orders - where assets of the group of companies are intertwined - where extension would allow administrators to retain assets necessary for business to continue trading to achieve best possible outcome from a sale - application granted - orders made
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Tam v MLPG Holdings Australia Pty Ltd [2024] FCA 394
CORPORATIONS - liquidator - appointment of provisional liquidator
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Tam v 5 Autumndale Holdings Pty Ltd [2024] FCA 395
CORPORATIONS - liquidator - appointment of provisional liquidator
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Khan v Uddin [2024] FCA 404
PRACTICE AND PROCEDURE - application for leave to proceed against respondent served outside Australia pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules) - where respondent has not filed a Notice of Address for Service within the time specified by r 10.43C - where Originating Application makes claims of a kind falling within r 10.42 - leave to proceed granted
PRACTICE AND PROCEDURE - application for judgment in default of appearance pursuant to rr 5.22 and 5.23 of the Rules - where applicant claims defamation caused by publication of an email by the respondent - where Statement of Claim pleads facts sufficient to establish an entitlement to judgment and damages - where, as a matter of law, the publication is able to sustain one or more of the pleaded imputations - judgment in default awarded with damages to be assessed - assessment of damages referred to a referee for report pursuant to r 28.61 of the Rules
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Director of Biosecurity v Chi [2024] FCA 388
ADMINISTRATIVE LAW - application for declarations and penalties for breach of the Biosecurity Act 2015 (Cth) - where respondents were intercepted when importing live fish into Australia for commercial gain - where respondents produced false or misleading incoming passenger cards - where respondents cooperated at all times and made significant admissions - declarations made and penalties imposed
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Fitzgerald, in the matter of Tempo Holidays Pty Ltd (in liq) v Tully [2024] FCA 391
INSOLVENCY - application by liquidator against first defendant director for compensation for breach of director's duties and insolvent trading - where liquidators and director settled claim ahead of hearing - where liquidators contend second defendant insurer is liable in consequence of the settlement
CORPORATIONS - breach of director's duties - ss 180 and 181 of the Corporations Act 2001 (Cth) - where sole Australian director of subsidiary of a global travel group permitted participation in a global treasury arrangement whereby substantial sums transferred to other group companies on undocumented and unsecured basis - funds exceeding $5.8 million transferred - where contended that director failed to monitor company affairs and failed to prevent payments being made - claim not proven
INSURANCE CONTRACTS - where company was insured pursuant to a Management Liability Insurance Policy - where insurer denies liability - where claim was made within policy period - where liquidators have failed to establish a claim for loss withing the meaning of the Policy - where company breached duty of disclosure
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Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51
INDUSTRIAL LAW - application for judicial review of decisions of the Full Bench of the Fair Work Commission - where Full Bench granted extension of time to appeal and permission to appeal against decision to approve enterprise agreement and upheld appeal - whether decisions and procedural orders affected by apprehended bias - where applicant contends that Full Bench identified and investigated a theory and developed interest in vindication of its theory - whether fair-minded lay observer would reasonably apprehend that Full Bench might not decide appeal impartially - no incompatibility between Full Bench's conduct and ability to impartially decide the case - application dismissed
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Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2024] FCA 389
PRACTICE AND PROCEDURE - application for extension of time for cross-appeal - where improper purpose and abuse of process - application dismissed
PRACTICE AND PROCEDURE - application for stay of execution of orders of primary judge - where orders required payment of compensation and pecuniary penalties - where payments made pursuant to those orders - application dismissed
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CMW23 v Companies Auditors Disciplinary Board [2024] FCA 407
ADMINISTRATIVE LAW - application for review of proposed conduct by the Companies Auditors Disciplinary Board - relief sought pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - relief sought pursuant to s 39B of the Judiciary Act 1903 (Cth)
CORPORATIONS - auditors - disciplinary proceeding against auditor - jurisdiction of the Board under s 1292(1)(d)(ii) of the Corporations Act 2001 (Cth) - duties and functions attaching to an auditor which are required by an Australian Law to be performed or carried out - Engagement Quality Control Reviewer - Registered Company Auditor - Review Auditor - application and scope of auditing standards prescribed pursuant to s 336 of the Corporations Act
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Joy v UGL Operations and Maintenance Pty Limited (No 4) [2024] FCA 410
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Manebona v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 402
MIGRATION - visa cancelled on character grounds - application for judicial review of Tribunal's decision to affirm decision of the delegate not to revoke cancellation - whether Tribunal misapplied a direction it was bound to apply - whether Tribunal overlooked material - whether failure to take relevant material into account satisfies threshold of materiality - whether Tribunal had a duty to make inquiries about relevant material - Tribunal's decision set aside
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Descon Group Australia Pty Ltd v Rodd (No 2) [2024] FCA 390
COSTS - form of order following a successful appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) to award indemnity costs - order of primary judge varied - application for costs of the application for leave to appeal and appeal- where appeal relates to a matter arising under s 570 of the Fair Work Act 2009 (Cth) - no submissions advanced as to why costs order should be made pursuant to s 570(2) of the Act - no order for costs of the application for leave to appeal and appeal
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Commissioner of Taxation v Tan [2024] FCA 406
TAXATION - appeal from decision of the Administrative Appeals Tribunal - where parties agreed that decision should be remitted for rehearing - whether the taxpayer should be permitted to adduce further evidence on remittal
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Vald Pty Ltd v KangaTech Pty Ltd (No 6) [2024] FCA 408
PATENTS - form of orders following judgment on claim and cross-claim - whether declaration of non-infringement should be made when relief not sought in cross-claim - where respondent offered form of undertaking following trial by email to judge's chambers - whether respondent should be (or needs to be) released from proposed undertaking
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Adefarakan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 409
MIGRATION - application for judicial review of a non-revocation decision of the Administrative Appeal Tribunal (AAT) - where the AAT failed to consider materials relevant to its inquiry, namely the applicant's rehabilitation progress relevant to his risk of harassing, molesting, stalking or intimidating a member of the Australian community - where the applicant unsuccessfully submitted that the AAT's reasoning was illogical and legally unreasonable, as it evaluated evidence of the applicant's rehabilitation more sceptically in its inquiry as to the risk he posed to the Australian community than when considering the impediments he would face if returned to his country of origin - where no issue of materiality - AAT decision set aside and the merits review to be conducted afresh - application upheld with costs
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Australian News Channel Pty Ltd v Isentia Pty Limited [2024] FCA 363
COPYRIGHT - statutory construction - section 183(1) of the Copyright Act 1968 (Cth) - meaning of "for the services of the Commonwealth or State" - whether provision of media monitoring services to government clients within s 183(1) - application dismissed
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Giasoumi and Deane, in the matter of SLKALT Pty Ltd (in liq) [2024] FCA 403
CORPORATIONS - application for extension of time under s 588FF(3)(b) of the Corporations Act 2001 (Cth) - application for "shelf order" - application opposed by some interested parties - where liquidators' investigations were delayed due to claim of privilege limiting access to documents - where further investigations were necessary - relevant considerations - 18-month extension sought by liquidators granted
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Fine China Capital Investment Limited v Qi (No 5) [2024] FCA 415
COSTS - appropriate order as to costs of interlocutory applications - where both parties were largely unsuccessful - where ordered that each party is to bear their own costs of the applications
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Dyirranga Ltd v Deputy Commissioner of Taxation [2024] FCA 411
PRACTICE AND PROCEDURE - service of application to set aside statutory demand under s 459G(3)(b) of the Corporations Act 2001 (Cth) - where application and supporting affidavit filed via eLodgement - where copies of application and supporting affidavit served before being accepted for filing - where documents served did not include seal of Court, proceeding number or return date - where requirements of s 459G(3)(b) have not been met
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Australia Securities and Investments Commission v Prakash [2024] FCA 321
CORPORATIONS - investigations by Australian Securities and Investments Commission - ex parte application for appointment of receivers, asset preservation, disclosure and travel restriction orders - where ASIC suspects contraventions of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act); ss 911A, 912A and 1041G of the Corporations Act 2001 (Cth), and s 408C of the Criminal Code Act 1899 (Qld) - whether it is necessary or desirable that orders be made - interim orders made
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Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) [2024] FCA 413
PRACTICE AND PROCEDURE - Whether leave to appeal is required against costs judgment - Where decision does not finally determine the substantive rights of the parties - Leave to appeal is required
PRACTICE AND PROCEDURE - Whether leave to appeal should be granted - Whether decision is attended with sufficient doubt to warrant its being reconsidered - Where submissions are misconceived - Leave should not be granted
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Alford v AMP Superannuation Limited (No 2) [2024] FCA 423
REPRESENTATIVE PROCEEDINGS - application seeking orders for opt out, group member registration regime and class closure - registration and class closure orders opposed by applicants - real caution is appropriate before making a class closure order over the applicant's objection - where registration and class closure is not necessary to facilitate settlement - likely low level of group member registration - substantial cost of proposed registration regime -registration regime unlikely to be necessary for the great majority of group members to be paid a share of any settlement or judgment - the relationship of respondents to group members is that of trustee and beneficiary - application dismissed
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Connelly, in the matter of Redback Technologies Holdings Pty Ltd (Administrators Appointed) [2024] FCA 418
CORPORATIONS - Application pursuant to s 439A(6) of the Corporations Act 2001 (Cth) to extend the period in which the plaintiffs must convene the second meeting of the creditors under s439A of the Act - Whether appropriate case for extension of convening period - Orders granted
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Hansen Yuncken Pty Ltd v The Hollard Insurance Company Pty Ltd [2024] FCA 398
INSURANCE - indemnity sought pursuant to commercial business insurance policy - construction of policy - whether and to what extent applicant insured under the policy - where policy extends the named insured to any party the insured undertakes to insure - where the insured undertook to insure the applicant - where applicant is the principal of the insured - where policy also extends cover on a limited basis to principals of the insured - declaratory relief granted
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Windsor Family Assets Pty Ltd v Green Day Energy Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 412
COSTS - application for security for costs - hopeless defence which had no chance of success - defendant must have known that defences lacked credibility - indemnity costs awarded
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