BANKRUPTCY AND INSOLVENCY – interlocutory application – application for release of funds for the purpose of the respondents defending the proceedings – where no security proffered – where no evidence to disclose whether respondent is in possession of any asset which would enable security to be provided – contrary to the interests of justice to release funds which would otherwise be available to creditors – application dismissed

MIGRATION – application for review of a migration decision – mandatory cancellation of a visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – decision of the second respondent (tribunal) not to revoke the cancellation decision – consideration of non-refoulement obligations – prospect of “prolonged" detention – whether the tribunal wrongly failed to take into account the legal consequences of its decision – whether the tribunal wrongly failed to take into account government policy – application dismissed

INDUSTRIAL LAW – classification of employee for the purposes of the Electrical, Electronic and Communications Contracting Award 2010 and the National Electrical, Electronic and Communications Contracting Industry Award 1998 – matter previously arbitrated in the Fair Work Commission – whether decisions of the Fair Work Commission and Full Bench of the Fair Work Commission extinguished justiciable controversy between parties as to classification of the applicant employee – cause of action estoppel established – issue of employee’s classification not open to be re-agitated in proceedings before the Federal Court of Australia

PRACTICE AND PROCEDURE – application for witnesses to give evidence by video link – application for counsel to present submissions by video link – witness prevented from entering Australia by reason of SARS-CoV-2 (coronavirus) pandemic – trial unable to proceed without evidence of witness – possible injustice if witness not cross-examined in person – risk of unfair trial – application dismissed

MIGRATION – application for Protection (Class XA) Visas – appeal from decision of Federal Circuit Court of Australia – where Administrative Appeals Tribunal rejected Appellants’ claims for want of credit – where adverse credit finding based on cumulative impact of five examples of want of credit – three of five examples found to be legally unsound – not possible to conclude that Tribunal would have reached same decision having regard only to the two remaining examples – jurisdictional error established – appeal upheld

CORPORATIONS – interim receivers – appointed under s 1101B(5) of the Corporations Act 2001 (Cth) – indemnity – costs and expenses – whether the Australian Securities and Investments Commission (ASIC) should provide any general indemnity – whether ASIC should meet the costs of receivers’ reports – consideration of the nature of receiverships appointed under the Corporations Act and the equitable jurisdiction – Australian Securities and Investments Commission v Carey (No 5) [2006] FCA 864 followed

MIGRATION – appeal from a judgment of the Federal Court of Australia – where appellant applied for safe haven enterprise visa following convictions for various criminal offences – where Minister made a decision to refuse the grant of the visa under s 501 of the Migration Act 1958 (Cth) – where decision of Minister set aside by Tribunal – where Minister personally decided to refuse the grant of a protection visa under s 501A after approximately 18 months – whether primary judge erred in dismissing an application for judicial review of the decision of the Minister – whether primary judge erred by failing to find the Minister’s decision was attended by unreasonable delay – whether there is an implied duty to exercise the power under s 501A within a reasonable time – whether ss 501 and 501A can be applied to refuse the grant of a protection visa

ADMINISTRATIVE LAW – where respondent suffered permanent hearing loss of 6.2% incrementally during Commonwealth employment between 1973 and 1999 – whether Administrative Appeals Tribunal (AAT) erred in finding that the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) as amended in 2001 applied with the result that Comcare was liable to pay compensation – where the applicable version of the SRC Act turned upon when the applicant was taken to have sustained the loss by virtue of s 7(4), SRC Act – where Comcare submitted that the applicant first suffered loss for the purposes of s 7(4)(b) when his Commonwealth employment ceased, being the last noisy date – whether Tribunal overlooked Comcare’s submission – consideration of principles governing drawing of inferences where Tribunal did not expressly consider Comcare’s submission – whether Tribunal failed to comply with the obligation to give reasons under s 43(2B), Administrative Appeals Tribunal Act – whether Tribunal proceeded on a misconstruction of s 7(4), SRC Act – application dismissed

INSURANCE – construction of industrial special risks policy – whether property insured under policy limited to property listed in schedule of declared assets – whether property insured under policy limited to property used in or related to the applicant’s business

INDUSTRIAL LAW — appeal from Local Court of NSW — meaning of “employment is terminated" in s 119(1) of Fair Work Act 2009 (Cth) — where no dispute that contract of employment had been terminated by employer because employer no longer required job done by employee to be done by anyone, whether employee, who had been working for employer full-time and who, against her will, accepted part-time employment at about 40% of her former wage, entitled to redundancy pay — whether "employment" refers to contract of employment or employment relationship
CONTRACTS — effect of termination of contract of employment on employment relationship
STATUTORY INTERPRETATION — meaning of "employment is terminated" in s 119(1) of Fair Work Act 2009 (Cth)

PRACTICE AND PROCEDURE – security for costs – general principles – applicant in liquidation – respondent insurer – litigation arising under the contract of insurance – whether duty of utmost good faith precludes security for costs application – whether the litigation will be stifled if order for security made – whether there was delay in bringing application – whether applicant’s impecuniosity arises out of respondent’s conduct – security for costs ordered

PRACTICE AND PROCEDURE – where the appellant seeks an interim injunction restraining the respondent from collecting further moneys until the appeal is heard – where the appellant seeks to appeal a decision of the Federal Court refusing his application for an extension of time to bring proceedings in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and discretionary relief under s 39B of the Judiciary Act 1903 (Cth) – where no proper basis to grant the order sought

COSTS – application for costs to be assessed on lump sum basis – where costs orders previously made – application allowed

PRACTICE AND PROCEDURE – appeal – orders made at first instance – penalty and costs orders – application for stay of orders – test in Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 applied – whether orders would render appellants financially incapable of continuing the appeal – whether there is sufficient evidence to make out the ‘reason’ for a stay

PATENTS – claims for single serve coffee capsule for use in an espresso machine – whether claims invalid for lack of novelty or inventive step – whether patent publications not shown to be common general knowledge constitute information that the skilled person could be reasonably expected to have ascertained, understood and regarded as relevant
PATENTS – whether claims invalid for insufficiency or inutility PATENTS – fair basis – whether claims not fairly based on the matter described in the specification
PATENTS – claims for single serve coffee capsule for use in an espresso machine – claim construction – whether claims, if valid, infringed by the first respondent
PATENTS – whether experimental evidence relied upon by patentee established infringement of relevant claims

MIGRATION – consideration of whether the Immigration Assessment Authority (“IAA") engaged in jurisdictional error in concluding that the appellant is not a person to whom Australia owes protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act") – consideration of the way in which the claims under s 36(2)(a) and s 36(2)(aa) were framed – consideration of the principle of reasonable internal relocation as developed in the authorities in considering claims made under the Refugees Convention as amended by the Refugees Protocol – consideration of that principle in the context of s 5J(1)(c) of the Act and whether those principles apply under the codified regime – consideration of the extent to which that subsection comprehends a risk of harm in a place of relocation less than a real chance of serious harm
MIGRATION – consideration of the extent to which an assessment of reasonableness for the purposes of s 36(2B)(a) in a claim under s 36(2)(aa) engages a consideration of a risk of harm or lack of safety in a proposed place of relocation where the harm is something other than "significant harm" for the purposes of s 36(2A) of the Act – consideration of the observations of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216 that authorities derived from the international jurisprudence in relation to international treaties are "unhelpful in interpreting the codified regime of complementary protection provided for in the [Act]" – consideration of the observations of Gordon and Edelman JJ in CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50 – consideration of the factors falling within the notion of "reasonableness" for the purposes of s 36(2B)(a) of the Act – consideration of the observations of the Full Court in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57; FCS17 v Minister for Home Affairs [2020] FCAFC 68; GLD18 v Minister for Home Affairs [2020] FCAFC 2; and other authorities

MIGRATION – application for judicial review of decision of Federal Circuit Court – where Federal Circuit Court refused application for extension of time to seek judicial review of decision of Refugee Review Tribunal – where decision of Federal Circuit Court reserved for almost five years – where delay not alleged to have operative effect on reasoning – whether obligation to make decision under s 477(2) of the Migration Act 1958 (Cth) within reasonable period of time – whether timely delivery of decisions is essential characteristic of exercise of judicial power – whether delay alone is sufficient basis for demonstrating excess of jurisdiction – application dismissed

PRACTICE AND PROCEDURE – application for leave to amend pleadings – whether consistent with overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) – where application made during trial – whether respondents would suffer prejudice – whether sufficient explanation for delay

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0847

PRACTICE AND PROCEDURE – application to vary Orders of 2 August 2019 pursuant to r 39.05(h) of the Federal Court Rules 2011 and to expand special purpose liquidators’ powers to investigate and pursue possible claims – application granted