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Latest Judgments from the Federal Court

• Kyle-Sailor v Heinke [2024] FCA 43129 Apr 2024PRACTICE AND PROCEDURE - representative proceeding - notice of settlement pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) - interlocutory application seeking non-publication order in respect of quantum of settlement sum - where parties agree that the quantum of the settlement sum should remain confidential -group members to be informed orally of settlement sum - whether non-publication order is necessary to prevent prejudice to the proper administration of justice and/or to protect the safety of any person - application dismissed
• Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action (No 2) [2024] FCA 43029 Apr 2024COSTS - dismissal of proceedings under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - whether appropriate to depart from usual rule that costs follow the event - where applicant seeks proportional reduction of respondent's costs to account for unsuccessful defences - whether appropriate to make "issues based" costs order - where no reason to reduce respondent's costs - held that costs should follow the event
• Commens t/as Subsonic Music v Certain Lloyd's Underwriters subscribing to Policy No ALTCNX1900332 (Trial Judgment) [2024] FCA 43429 Apr 2024INSURANCE - separate questions on liability - where insured's music festival cancelled - whether cancellation was necessary and sole and direct result of cause not otherwise excluded - where insured suggested cancellation was because of bushfires - where no objective inability to commence festival - where real reason for cancellation was onerous and late imposition of conditions by council - insurer not liable
• Azimitabar v Commonwealth of Australia [2024] FCAFC 5226 Apr 2024MIGRATION - appeal from a decision of a single judge of the Federal Court of Australia dismissing an application for damages arising from the alleged unlawful detention of the appellant at the Mantra Bell City Hotel and the Park Hotel (the Hotels) - whether subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act 1958 (Cth) (the Act) impliedly confers a power on the Minister to approve "another place" of immigration detention - whether the Hotels were validly approved by the Minister as "another place" of immigration detention - whether the construction of subpara (b)(v) is limited by s 273 of the Act which contains an express power to establish detention centres - where appellant sought leave to rely on an argument not raised before the primary judge - leave refused as new ground lacks sufficient prospects of success to warrant leave being granted - whether lawfulness of immigration detention is conditional upon proper authorisation of the expenditure on the place of detention - where authorisation of the Hotels as "another place" of immigration detention did not depend on lawfulness of associated expenditure - appeal dismissed
• MSA 4x4 Accessories Pty Ltd v Clearview Towing Mirrors Pty Ltd (No 2) [2024] FCA 41726 Apr 2024COSTS - where the respondent was successful in defending patent infringement proceedings - where applicants were successful in defending invalidity case - where respondent advanced aspects of invalidity case on premise that applicants' construction of claims was correct - where respondent was only party to have any success in proceeding - whether global costs order should be made and if so, the amount of any discount to be applied
• Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 4) [2024] FCA 41926 Apr 2024COSTS - unsuccessful action for trade mark infringement - whether costs should be assessed on an indemnity basis following the unsuccessful applicant's non-acceptance of a Calderbank offer or because the unsuccessful applicant ought to have recognised from a given date that its case on infringement could not succeed - whether costs should be apportioned depending on the parties' mixed success in respect of the issues raised at trial - where the questions of whether costs should be awarded on a lump sum basis and the quantum of such costs are referred to a Registrar acting as a referee for inquiry and report
• Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 42726 Apr 2024ADMINISTRATIVE LAW - application for judicial review of Administrative Appeals Tribunal (Tribunal) decision refusing stay of respondent's decision not to renew applicant's designation as a registered air cargo agent - whether Tribunal was required to give weight to reg 4.43F of the Aviation Transport Security Regulations 2005 (Cth) when considering whether a stay should be granted - whether the Tribunal exceeded its jurisdiction by reasoning that the public interest weighed against a stay ADMINISTRATIVE LAW - where applicant seeks to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from Tribunal's decision not to grant a stay under s 41 of the AAT Act - whether appeal under s 44 competent
• Burrows v The Ship 'Merlion' (No 2) [2024] FCA 42926 Apr 2024ADMIRALTY PROCEDURE - application for judgment in default of appearance - where defendant entered conditional appearance to challenge jurisdiction - where challenge largely failed - effect of failure on conditional appearance - where defendant also brought application for summary judgment - whether defendant taken to have waived objection to jurisdiction
• Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 42226 Apr 2024DEFAMATION - where defamatory imputations allegedly conveyed by a television program called "A Current Affair" and accompanying articles about dispute concerning the ownership of a supposedly Instagram famous dog named Oscar - the wondrous life and times of Oscar the cavoodle - where alleged imputations included theft and financial exploitation of Oscar and delay of related court proceedings - whether alleged imputations carried or conveyed by the publications - held that most of the imputations were conveyed DEFAMATION - defence of justification - whether substantially true that the applicant "stole" Oscar - where the applicant obtained possession of the dog by a deception - whether applicant had an honest claim of right - defence not established - defence of contextual truth - contextual imputations not substantially true and any damage caused by them would not have "swamped" the damage caused by other imputations DAMAGES - extent of damages for non-economic loss - whether aggravated damages should be awarded - whether pre-publication conduct can be considered for aggravated damages - where defamatory publications damaged applicant's reputation and caused hurt to feelings and distress to applicant - mitigation or reduction of damages as a result of disreputable conduct on the part of the applicant - applicant awarded compensatory and aggravated damages
• Satterley Property Group Pty Ltd v Federal Commissioner of Taxation [2024] FCA 42126 Apr 2024TAXATION -- two appeals under s 14ZZ of the Taxation Administration Act 1953 (Cth) -- where applicant lodged two objections to its income tax assessment for the 2020 income year and where the respondent did not allow the objections -- whether pursuant to s 8-1(1) or, in the alternative, s 40-880 of the Income Tax Assessment Act 1997 (Cth) the applicant may deduct Top-Up Payments which it paid to investors -- whether the Top-Up Payments are on capital account or revenue account -- whether the Top-Up Payments formed part of the consideration paid by the applicant for shares -- consideration of the share sale agreement -- whether extrinsic evidence may be considered to resolve alleged ambiguity in a contract -- consideration of the applicant's business model -- whether the Top-Up Payments were made for the sole purpose of preserving goodwill
• Munkara v Santos NA Barossa Pty Ltd (No 4) [2024] FCA 41424 Apr 2024PRACTICE AND PROCEDURE - respondent in action wholly successful in defending applicants' claims - respondent party requesting and serving subpoenas following judgment on the primary claims - subpoenas requested for the purpose of assisting the respondent to decide whether to make an application for costs against non-parties including four addressees - addressees' application to set aside subpoenas in part - whether a subpoena may issue for the purpose disclosed by the respondent - where the addressees alleged there is no reasonable basis to expect that the documents described could support an application for costs against them - consideration of the breadth of the Court's power to issue a subpoena - consideration of evidence disclosing a reasonable basis to expect that the addressees are in possession of documents that may assist the respondent to decide whether to bring a costs application - prior authorities not determinative of the questions arising on the applications
• Windsor Family Assets Pty Ltd v Green Day Energy Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 41224 Apr 2024COSTS - application for security for costs - hopeless defence which had no chance of success - defendant must have known that defences lacked credibility - indemnity costs awarded
• Hansen Yuncken Pty Ltd v The Hollard Insurance Company Pty Ltd [2024] FCA 39824 Apr 2024INSURANCE - 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
• Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) [2024] FCA 41324 Apr 2024PRACTICE 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
• Dyirranga Ltd v Deputy Commissioner of Taxation [2024] FCA 41124 Apr 2024PRACTICE 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
• Rota v Fire Rescue Victoria [2024] FCA 42424 Apr 2024REPRESENTATIVE PROCEEDINGS - Application for approval to discontinue a representative proceeding - principles relevant to approval of discontinuance - where each class member consented to the discontinuance - whether any limitation periods applicable to group members' claims begin to run again upon discontinuance - discontinuance approved
• Vald Pty Ltd v KangaTech Pty Ltd (No 6) [2024] FCA 40823 Apr 2024PATENTS - 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
• Fine China Capital Investment Limited v Qi (No 5) [2024] FCA 41523 Apr 2024COSTS - 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
• Adefarakan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 40923 Apr 2024MIGRATION - 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
• Giasoumi and Deane, in the matter of SLKALT Pty Ltd (in liq) [2024] FCA 40323 Apr 2024CORPORATIONS - 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