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Brecher v Barrack Investments Pty Limited (No 2) [2020] FCA 911

CONSUMER LAW – claim under Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (ACL) that respondents engaged in misleading or deceptive conduct – where parties established a corporate vehicle to operate radiology practices – whether respondents made misrepresentations as to the history, workload and planned expansion of a medical centre – whether respondents made misrepresentations regarding independence of lawyers and nature of proposed venture – where applicants’ evidence not reliable – claim dismissed
CONSUMER LAW – claim under Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (ACL) that respondents engaged in misleading or deceptive conduct – where parties established a corporate vehicle to operate radiology practices – whether respondents made misrepresentations as to the history, workload and planned expansion of a medical centre – whether respondents made misrepresentations regarding independence of lawyers and nature of proposed venture – where applicants’ evidence not reliable – claim dismissed CONSUMER LAW – claim under ss 20 and 21 of the ACL that respondents conduct was unconscionable – whether respondents withheld information from applicants – whether respondents encouraged applicants to execute documents without legal advice – where applicants were not in a position of special disadvantage – where applicants chose to execute documents without legal advice – claim dismissed
EQUITY – claim that third respondent breached fiduciary duty owed to applicants – whether fiduciary duty arose before entering into a formal agreement – whether third respondent was a “promoter” owing fiduciary duties – whether fiduciary duties existed on the basis of a “prospective partnership” or because of a “special vulnerability” of the applicants – claim dismissed
CONSUMER LAW – claim that the cross-respondents engaged in misleading or deceptive conduct under the ACL – whether cross-respondents’ representations regarding pre-existing radiology practice were misleading – whether cross-respondents provided incorrect profit and loss statement and balance sheet to respondents – where balance sheet was materially incorrect – where it was not established that the cross-claimant would not have entered into transaction if related-party loan had been disclosed on balance sheet – cross-claim dismissed CONTRACTS – claim that first cross-respondent breached “no-conflict” covenant in agreement – where first cross-respondent engaged in work for radiology practices without authorisation – where entitlement to damages for breach properly rested with corporate vehicle in liquidation rather than the cross-claimants – cross-claim dismissed

Tetley v Goldmate Group Pty Ltd [2020] FCA 913

PRACTICE AND PROCEDURE – application to adjourn – where Court will be required to decide between two competing accounts on at least one of the issues at trial – where a remote hearing will impede the ability to obtain instructions in a timely manner – application granted.

Haswell v Commonwealth of Australia [2020] FCA 915

PRACTICE AND PROCEDURE – implied undertaking not to use documents obtained by compulsory process for a collateral or ulterior purpose unrelated to the proceeding in which the information was obtained – where two documents prepared for the purposes of earlier class action proceedings sought to be used in related but separate class action – where solicitors for the applicant in the earlier class action did not agree to use of any non-public materials produced or created for the purpose of the earlier class actions in the new class action – where toxicology report produced pursuant to referral received into evidence and adopted as findings of the Court in earlier class action – where joint chemistry report was not received into evidence – where information constituting a summary of the reasoning of the joint chemistry report had been disclosed in submissions – consideration of relevant principles – continuing maintenance of the undertaking once a document is tendered in evidence or formally read in open court inconsistent with the relevant information being in the public domain – parties relieved of implied undertaking with respect to information contained in joint chemistry report and adjectival information provided by any party to referee for the purposes of inquiry and preparation of toxicology report.

Lo v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895

MIGRATION – other family (residence) (Class BU) carer visa application – regs 1.03, 1.20, cll 836.213 and 836.227 of Sch 2 of Migration Regulations 1994 (Cth) – where cl 836.213 required that applicant “is sponsored" at time of application – where cl 836.227 required that sponsorship mentioned in cl 836.213 approved by Minister and still in force at time of decision – where sponsor had dementia at time of application – where Tribunal found sponsor not have capacity to understand sponsorship obligations at time of application – whether signed support by sponsor’s spouse on original application evidence of spouse’s sponsorship undertaking in reg 1.20 – whether cl 836.213 permits a person to give sponsorship undertaking after time of application.
MIGRATION – certificate under s 376(2) Migration Act 1958 (Cth) – where Department gave Tribunal certificate Tribunal found valid – where Tribunal disclosed only some information covered by certificate and told applicant rest irrelevant – where provider of information withheld only sought to remain anonymous and identity not disclosed in balance of information – whether failure to disclose other information material.

Tresize v National Australia Bank Limited [2020] FCA 902

PRACTICE AND PROCEDURE – application for summary dismissal – where the applicant claimed that consent orders made in 1993 should be set aside on the basis of fraud on the part of the respondent – where the applicant had brought at least three earlier proceedings seeking to have the consent orders set aside – whether the claims should be permanently stayed or dismissed on the basis of abuse of process, Anshun estoppel, res judicata or issue estoppel – whether the claims should be dismissed on the ground that they had no reasonable prospect of success or constituted an abuse of process

Ali v Minister for Home Affairs [2020] FCAFC 109

MIGRATION – appeal from the Federal Court of Australia dismissing an application for judicial review of a decision made by the Assistant Minister – jurisdictional fact error – where the Assistant Minister did not revoke the mandatory cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the appellant made representations to the Assistant Minister upon the Assistant Minister’s invitation under s 501CA(3)(b) – where the appellant failed the character test – where the appellant raised Australia’s non-refoulement obligations in respect of him as “another reason" why the decision to cancel his visa should be revoked under s 501CA(4)(b)(ii) – where the Assistant Minister considered it was "unnecessary" to determine whether non-refoulement obligations were owed in respect of the appellant on the basis those obligations would be fully considered if the appellant applied for a protection visa – whether the primary judge erred in not finding that the Assistant Minister erred in deferring consideration of Australia’s non-refoulement obligations in respect of the appellant – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be considered in the same way in any subsequent protection visa application as under s 501CA(4) – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be fully considered on any subsequent protection visa application – appeal allowed

CJMCG Pty Ltd as Trustee for the CJMCG Superannuation Fund v Boral Limited [2020] FCA 914

REPRESENTATIVE PROCEEDINGS – multiplicity of proceedings – where two substantially duplicative open class actions commenced – where the Court advised of the potential commencement of a third open class proceeding –– contrary to the administration of justice for substantially duplicative, open class proceedings to continue without sound justification – whether further progress of proceedings should be deferred pending decision of High Court of Australia on appeal from Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323
PRACTICE AND PROCEDURE – duty of practitioners to inform the Court of possible intention to commence a class action which is substantially duplicative of proceedings currently on foot – remaining “mute” inimical to resolution of disputes in a quick, inexpensive and efficient manner

Gelonesi v G. Abignano (Investment) Pty Limited [2020] FCA 898

BANKRUPTCY – application to set aside bankruptcy notice based on judgment debt -where applicant alleges bankruptcy notice overstates the amount due by unspecified amounts – where applicant seeks to enlarge grounds of opposition to the bankruptcy notice to allege offsetting claim within s 40(1)(g), Bankruptcy Act 1966 (Cth) and misstatement on new grounds – where application does not specify the provisions of the Bankruptcy Act relied upon – where offsetting claim does not equal or exceed the judgment debt and is not mutual and in the same right – whether Court should go behind the judgment debt – leave to enlarge grounds of opposition refused on ground they lack prospects of success – application dismissed

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893

INDUSTRIAL LAW – adverse action – discrimination for reason of age – where recruitment company refused application for employment because person applying was 70 years old – where position was for grader operator on assignment in the Pilbara region of Western Australia – whether client or recruitment company was prospective employer – where client expressed concern about person’s age – where independent assessment of age undertaken by decision-maker – whether age was a substantial and operative factor in decision-maker’s reasons – contravention of s 351(1) of Fair Work Act 2009 (Cth) by first respondent established

Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy (No 2) [2020] FCAFC 112

COSTS — trial of separate question as to date of insolvency in three proceedings — preference claims by liquidators against creditors — appeals by liquidators seeking finding of earlier date — cross-appeals by creditors challenging date found by primary judge — finding that liquidators had failed to make proper discovery and that such failure was ongoing — cost of appeals and cross-appeals — whether costs should be awarded on an indemnity basis

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) [2020] FCA 888

NATIVE TITLE – applications to be joined as a respondent in two native title proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) – applicant formerly a member of a claim group in a native title determination application in respect of the same area – where the former native title determination application was summarily dismissed – where joinder applicant asserted his interests may be affected by determinations of native title made in favour of other Aboriginal groups – whether the assertion of native title rights and interests under s 84(5) constitutes an abuse of process – where applicant asserted non-native title interests in his capacity as a senior law man having custodial responsibilities for sites in the area – where cultural and heritage interests not derived from or dependent upon the existence of native title – where one proceeding includes an application for a determination of native title in exclusive terms – whether a determination of native title in exclusive terms may demonstrably affect the joinder applicant’s interests – whether it is in the interests of justice to join the applicant in that proceeding – where another proceeding includes no application for a determination of exclusive native title – whether joinder applicant’s asserted interest may be affected by the non-exclusive determination – application for joinder allowed in one proceeding, but disallowed in the other

Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111

CONSUMER LAW – alleged contraventions of s 128 of National Consumer Credit Protection Act 2009 (Cth) – where respondent used automated system for conditional approval of home loans – where respondent calculated proposed repayments with principal amortised over life of interest only loan – whether respondent made the assessment required of unsuitability
APPEAL – whether primary judge erred in failing to find respondent contravened s 128 by not making an assessment in accordance with s 128(c) of National Consumer Credit Protection Act 2009 (Cth) – appeal dismissed with costs

DQM18 v Minister for Home Affairs [2020] FCAFC 110

MIGRATION ACT – s 501CA(4) Migration Act 1958 (Cth) – application for judicial review – where Assistant Minister determined not to revoke cancellation of appellant’s visa – whether the Assistant Minister failed to perform the requisite statutory task by (i) giving meaningful consideration to various representations made by the appellant; (ii) by failing to determine the country to which the appellant would be returned; and (iii) by failing to consider that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant’s visa – whether any error was material to the exercise of power and therefore a jurisdictional error – decision of Assistant Minister set aside.