News – Astra Law

Latest Judgments from the Federal Court

Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd [2024] FCA 49015 May 2024INDUSTRIAL LAW - whether employers contravened ss 50 and 323 of the Fair Work Act 2009 (Cth) - interpretation of enterprise agreement - where employers refused to pay employees for the periods they were engaged in protected industrial action - whether enterprise agreement abrogated common law principle that payment of wages is conditional upon performance of work or readiness or willingness to perform work - employers were required by s 470(1) and authorised by s 471(4) of the Fair Work Act 2009 (Cth) to refuse to make payments in relation to the period of industrial action - application dismissed
Roebuck v Shopping Centres Australasia Property Group Re Limited [2024] FCA 50315 May 2024INDUSTRIAL LAW - originating process for alleged contravention of modern award (Real Estate Industry Award 2020) and misrepresentations contrary to sections 45 and 345 of the Fair Work Act 2009 (Cth) - determination of separate questions on agreed facts - where employee employed as Regional Leasing Manager - where contract of employment includes duty statement - where contract of employment contained purported 'guarantee of annual earnings' - whether employee was covered by the Award under s 48(1) of the Act - whether the Award applied to the employee under s 47(1) of the Act - whether at time of termination of employment employee was a high income employee under s 329 of the Act - consideration of meaning of 'guarantee of annual earnings for the guaranteed period' in s 329(1)(a) of the Act - whether on the proper consideration of the contract of employment there was an identifiable 'guarantee period' within the meaning of s 331 of the Act
Boating Syndication of Australia Pty Ltd v BSA Management Qld Pty Ltd [2024] FCA 50214 May 2024PRACTICE AND PROCEDURE - interlocutory application to enforce contractual restraint of trade clause - application of Restraint of Trade Act (NSW) - where applicant bears the onus of proof - where there is a serious question to be tried - where the balance of convenience does not favour the grant of an injunction - application refused
Merchant v Commissioner of Taxation [2024] FCA 49814 May 2024TAXATION - s 177D in Part IVA of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) - where tax benefit admitted - where only issue was dominant purpose under s 177D(1) to obtain admitted tax benefit - where vendor sells shares in listed company at market value to related entity such that there was no change in economic ownership - where sale of shares triggered capital loss - where sale occurred in context of predicted capital gains being made by vendor from sale of a company to a third party - held: dominant purpose was one of obtaining the admitted tax benefit TAXATION - dispute as to market value of future earn-out amounts - market value determined in favour of applicant TAXATION - s 177E in Part IVA of the ITAA 1936 - dividend stripping - where loans made by related entities to a company the shares in which were going to be sold - whether the loan forgiveness had substantially the effect of a scheme by way of or in the nature of dividend stripping - proper identification of the scheme for the purposes of s 177E - whether consequences of the application of the general anti-avoidance provision taken into account in determining application of s 177E to a related assessment - held: scheme had the effect of a scheme by way of or in the nature of dividend stripping within s 177E(1)(a)(ii) TAXATION - taxation of financial arrangements (TOFA) - whether certain future payment amounts were financial arrangements under subsection 230-45(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) - if they were, whether future payment rights were excluded by former section 230-460(13) ITAA 1997 - held future earn-out rights were separate financial arrangements, but exception applies
Hill v Minister for Infrastructure, Transport, Regional Development and Local Government [2024] FCA 49414 May 2024COSTS - where applicant sought judicial review of decision of Minister's delegate to grant dispensations under s 20(1) of the Sydney Airport Curfew Act 1995 (Cth) - where Minister's delegate revoked each of the dispensations the subject of the application after applicant had commenced proceedings - where applicant sought to recover costs of bringing application on basis that the Minister had effectively surrendered to the relief sought - consideration of whether bringing of application was reasonable - consideration of whether Minister had effectively surrendered - held that parties should bear their own costs
General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 3) [2024] FCA 49214 May 2024PRACTICE AND PROCEDURE - leave to amend originating application and statement of claim - originating application and statement of claim amended on previous occasions - new causes of action proposed - application made more than three years after proceedings commenced - no adequate explanation for need to replead - relevant considerations - application refused
Australian Securities and Investments Commission v Noumi (No 2) [2024] FCA 49514 May 2024EVIDENCE - where finding in Principal Judgment (PJ) that legal professional privilege applies to Contested Documents including investigation report - where finding in PJ as to waiver of privilege in investigation report and associated documents - where issue raised following delivery of PJ as to whether privilege established and waived in three associated documents - where final orders disposing of application had not been made so open to Court to re-consider or further consider waiver issue - finding that portions of the three documents privileged on separate basis to investigation report such that waiver of privilege in investigation report did not result in waiver of privilege in those portions - final orders disposing of privilege dispute made largely by consent COSTS - where first and second defendants each enjoyed a degree of success and failure in PJ - where first defendant succeeded in establishing privilege but failed in resisting finding of waiver of privilege in respect of investigation report and certain associated documents - finding that neither party could be characterised as ultimate winner - finding that each party should bear its own costs subject to an exception - where second defendant reformulated or did not press arguments raised in submissions at hearing - finding that second defendant should pay 75% of costs incurred by first defendant in responding to arguments reformulated or not pressed
Minos v S.J. Timilty Building Pty Limited (Deregistered) [2024] FCA 51213 May 2024CORPORATIONS - application for reinstatement of a deregistered company pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act) - application for orders that the company be wound up pursuant to s 461(1)(k) of the Act and liquidator to be appointed - whether plaintiffs are a "person aggrieved" within the meaning of the Act - where plaintiffs may have claims against the company under the Home Building Act 1989 (NSW) - whether the reinstatement of the company would be just - whether winding up of company would be just and equitable - application granted - orders made
Janssen v OnePath Custodians Pty Ltd [2024] FCA 49713 May 2024PRACTICE AND PROCEDURE - pleadings - amendment - where applicants seek to amend to add extensive and substantive claims - where trial date set nearly one year ago - where, if amendments allowed in their entirety, trial date would be vacated and matter not heard for significant period - where certain amendments could be accommodated in existing trial timetable - consideration of competing interests - application allowed, in part
Mokhtar v Piscopo [2024] FCA 49313 May 2024BANKRUPTCY - application by a bankrupt for order removing trustee pursuant to s 90-15 of the Insolvency Practice Schedule (Bankruptcy), Schedule 2 of the Bankruptcy Act 1966 (Cth) - consideration of principles governing removal of a trustee in bankruptcy - whether relationship between bankrupt and trustee has irretrievably broken down - whether the trustee has lost the objectivity required of a trustee in bankruptcy- where the bankrupt failed in multiple respects to cooperate with the trustee-where trustee filed 17 notices of objection to discharge to bankruptcy in 10 month period - whether proper basis to infer that the notices of objection were filed for an improper purpose - where trustee's lack of objectivity has exacerbated the breakdown - where "red-flags" evident such that the necessity and prudence of undertaking investigations and protecting the assets of the estate in bankruptcy should have been evident from the commencement of the bankruptcy -whether replacement of the trustee is in the best interests of the bankrupt estate -where outcome is not a vindication of the bankrupt's conduct - removal of trustee ordered EVIDENCE - consideration of the impact of the passage of time on the quality of evidence - undesirability of evidence of conversations being given in direct speech in affidavits despite the passage of time and the witness not recalling the precise words used in the conversations - whether there was a failure to comply with the rule in Browne v Dunn with respect to the failure to cross-examine the trustee on certain topics
Softmed Manufacturing Pty Ltd v Secretary, Department of Health and Aged Care [2024] FCA 49113 May 2024ADMINISTRATIVE LAW - application for judicial review of decision of delegate of the Secretary, Department of Health and Aged Care to release certain information pursuant to s 61(3) of the Therapeutic Goods Act 1989 (Cth) to various Commonwealth, State and Territory health authorities - whether there was a breach of the rules of natural justice - whether there was a failure to take a relevant consideration into account - whether the exercise of power was so unreasonable no reasonable person could have so exercised the power - whether declaratory relief ought to be granted
eSafety Commissioner v X Corp [2024] FCA 49913 May 2024PRACTICE AND PROCEDURE - application for injunction under s 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RP Act) - where respondent issued with removal notice pursuant to s 109 of the Online Safety Act 2021 (Cth) (OS Act) - where interim injunction granted under s 122 of the RP Act requiring compliance with notice - whether interim injunction should be extended - whether real issue to be tried - validity of removal notice - whether removal of content identified in notice for all users on the respondent's platform internationally a "reasonable step" required by ss 109 and 111 of the OS Act - where "comity of nations" considerations powerful - whether balance of convenience favours grant of injunction - where unenforceability of injunction has potential to bring administration of justice into disrepute PRACTICE AND PROCEDURE - applications for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - whether orders necessary to prevent prejudice to the proper administration of justice - whether orders necessary to protect the safety of any person
Lehrmann v Network Ten Pty Limited (Costs) [2024] FCA 48610 May 2024COSTS - applicant unsuccessful in claim for defamation - where defence of substantial truth established - where no real winners in the litigation - assessment of the conduct of the respondents in exercise of discretion as to costs - facts relating to settlement - Calderbank offer - relevant principles overarching purpose to civil litigation - where conduct of Network Ten relating to publication of the programme in counterfactual far from reasonable - where conduct not sufficiently severable to deprive Network Ten of its costs in relation to statutory qualified privilege defence - where Network Ten entitled to costs on the indemnity basis but otherwise on the ordinary basis in relation to statutory qualified privilege defence - where same considerations apply mutatis mutandis to Ms Wilkinson - orders made
Petrovsky v Southern Adelaide Local Health Network Incorporated [2024] FCA 50010 May 2024PRACTICE AND PROCEDURE - application for urgent interlocutory relief - where urgent injunctive relief sought to maintain applicants' access to respondents' premises, and enforcement of purported oral undertakings given by the respondents - whether there is a prima facie case for relief - alleged breach of joint venture agreement or licence to occupy - whether previous application for urgent interlocutory relief on similar grounds was wrongly decided - whether balance of convenience favours injunctive relief - where previous second application for urgent interlocutory relief was refused by duty judge - application for interlocutory relief dismissed again
Cleanfin Pty Ltd v Forest Carbon Methodology Pty Ltd [2024] FCA 48910 May 2024CORPORATIONS - application by plaintiff for leave to bring derivative proceedings on behalf of company under s 237 of Corporations Act 2001 (Cth) - whether company will bring proceedings - whether the company is acting in good faith - whether in the best interests of company that plaintiff be granted leave - whether proposed proceedings involve serious questions to be tried - leave to bring derivative proceedings granted PRACTICE AND PROCEDURE - application to amend originating process and statement of claim - whether proposed amendments would be liable to be struck out - whether new legal foundation for claim arises out of facts already pleaded - whether proposed amendment is likely to cause prejudice and delay in proceedings - consideration of ss 37M and 37N of the Federal Court Act 1979 (Cth) and r 16.21(1)(d) of the Federal Court Rules 2011 (Cth) - further particulars required - leave to amend originating process granted - leave to file an amended statement of claim to be granted subject to the provision of further particulars
Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 5) [2024] FCA 47710 May 2024CORPORATIONS - representative proceeding - listed securities - continuous disclosure obligations - ASX Listing Rules - whether respondent "aware" of certain pleaded information - whether the content of the information as pleaded conforms to the requirements for disclosure under the ASX Listing Rules - whether the information as pleaded, and if generally available, would have a material effect on the price of the securities COMPETITION AND CONSUMER LAW - misleading or deceptive conduct - whether certain representations were made CORPORATIONS - disclosure to investors about securities - pro-rata renounceable entitlement offer of new shares to existing shareholders - cleansing notice - whether cleaning notice defective - whether cleansing notice required correction DAMAGES - causation and loss - market-based causation - alleged loss in the form of artificial share price inflation - whether causation and loss established on the basis of an event study DAMAGES - assessment - sufficiency of evidence
Hassan v Image Nominees Pty Ltd (In liquidation) [2024] FCA 48710 May 2024CORPORATIONS -- liquidation of companies -- liquidators' remuneration -- whether amount of remuneration is reasonable --orders made
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 48310 May 2024INDUSTRIAL LAW - where respondents found to have contravened the Fair Work Act 2009 (Cth) in multiple respects, what orders should be made - where employees found to have been underpaid but received some payments under a deed of company arrangement before proceeding commenced, whether an order should be made that the amount of underpayments in excess of payments made under the deed be paid to the applicant for payment out to the employees - whether compensation should be awarded for non-economic loss - where respondents not previously found to have contravened the Act but contravening conduct extensive, serious and deliberate; occurred over a period of four years; and no contrition exhibited - civil double jeopardy - where overlap in the conduct constituting multiple contraventions - whether penalties proposed by Fair Work Ombudsman appropriate
Neurim Pharmaceuticals (1991) Ltd v Generic Partners Pty Ltd (No 6) [2024] FCA 48010 May 2024PATENTS - appropriate form of declaration of infringement - amendment of claim for additional damages - whether outside terms of leave previously granted - whether costs relating to preparation of written evidence should be reduced - whether such costs unreasonably or unnecessarily incurred
Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) (No 5) [2024] FCA 47909 May 2024CORPORATIONS - voluntary administration - deed of company arrangement - application to continue stay of orders terminating deed of company arrangement and ordering company to enter winding up in insolvency - Federal Court Rules 2011 (Cth) r 36.08- whether Court has power to order stay of winding up in insolvency - principles relevant to ordering stay - rational prospect of success - arguable points - balance of convenience - security for costs