PRACTICE AND PROCEDURE – application for an extension of time within which to appeal – application for leave to appeal from a decision of the Federal Circuit Court of Australia (hereafter, the “FCCA") – where the FCCA found that the applicants terminated the respondent’s employment in contravention of ss 340(1) and 352 of the Fair Work Act 2009 (Cth) – whether the proposed appeal has merit – whether leave to appeal required – whether it is in the interests of justice to grant leave to appeal – whether sufficient explanation afforded for length of delay – whether granting of leave to appeal unfairly prejudicial to the respondent – extension of time and leave to appeal granted

ADMINISTRATIVE LAW – application for judicial review of decision to decline to waive debt – whether decision was unreasonable – application dismissed
COSTS – unreasonable conduct by both parties – each party to bear its own costs

ADMINISTRATIVE LAW – application for issue of writ of certiorari quashing decision to approve payment plan for Commonwealth debt – whether decision-maker had authority to make the decision – whether decision-maker failed to take into account a relevant consideration – whether decision was legally unreasonable – application dismissed

BANKRUPTCY – application by trustee in bankruptcy seeking orders and declarations to effect the sale of two properties – withdrawal of caveats pursuant to s 74MA of the Real Property Act 1900 (NSW) – appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – execution of transfer of property by a person nominated by the Court for that purpose – application granted

ADMINISTRATIVE LAW – COVID-19 travel ban – where applicants requested exemption from travel ban to attend son’s wedding in New Jersey – where decision -maker refused exemption requests – whether decision-maker asked wrong question – whether decision-maker inflexibly applied policy – whether decision-maker failed to take into account relevant considerations – whether decision-maker failed to afford procedural fairness – application dismissed

CONSUMER LAW – misleading and deceptive conduct – where the appellant alleges contraventions of ss 18, 29 and 33 of the Australian Consumer Law, being Schedule 2
to the Competition and Consumer Act 2010 (Cth),
arising out of the respondent’s marketing of wipes as “flushable" – where the appellant alleges that flushable wipes caused harm to household and municipal sewerage – whether representation was false, misleading or deceptive – whether representations made that wipes had characteristics, including as to disintegration, similar to toilet paper – characteristics and disintegration representations not made – appeal dismissed

MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation under s 501CA(4) of the Act – Minister failed to give proper, genuine and realistic consideration to representations made by the Applicant regarding the best interests of her children – Minister entitled to rely on common or general knowledge to find the Applicant would have access to medical and social services in the United Kingdom comparable with those in Australia – Minister failed to give proper, genuine and realistic consideration to the consequences for the Applicant if returned to United Kingdom – Minister’s decision vitiated by jurisdictional error for being legally unreasonable

PRACTICE AND PROCEDURE – application alleging contempt required to be accompanied by affidavits intended to be relied on to prove the charge – where applicant seeks to file further affidavit evidence after respondent has requested particulars of charge – whether Federal Court Rules 2011 (Cth) r 42.12 limits evidence that can be filed in support of a contempt charge – applicant granted leave to file further affidavit evidence

PRACTICE AND PROCEDURE – where new s 78B notice of constitutional matter proposed during final submissions – where Court has already heard evidence in the case – whether hearing of final submissions can proceed without s 78B notice issued – whether other arguments severable from constitutional question contained in s 78B notice

PRACTICE AND PROCEDURE – application for interlocutory injunction restraining removal of applicant from Australia – where applicant requested ministerial intervention in relation to visa cancellation under s 351 of the Migration Act 1958 (Cth) – where request not referred to Minister by departmental officer – whether departmental officer’s determination not to refer applicant’s request legally unreasonable – application dismissed

COSTS – of interlocutory application – whether any proper basis exists to depart from usual order that costs follow the event – where plaintiff succeeded on the substantive application – where the plaintiff was unsuccessful on some evidentiary points – where the plaintiff amended its relief in response to arguments raised by the defendants – where plaintiff sought reserved costs

CRIMINAL LAW – application for confirmation of interim control order pursuant to s 104.14 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth) – whether the obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted.
Held: control order confirmed subject to some variations.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0106

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 one month before trial – whether sufficient explanation for delay – whether respondent would suffer prejudice – no sufficient explanation for delay – respondent did not demonstrate prejudice would flow from allowing proposed amendments – amendments would not necessitate adjournment of the trial – leave to amend granted
PRACTICE AND PROCEDURE – application for adjournment of trial – whether new factual and legal issues raised by list of issues – where recent subpoena material – where evidence required to be given by video link due to COVID-19 restrictions – insufficient evidence of new material required to be put on by the parties in response to new issues – challenges of document management and evidence by video link not insurmountable – application to adjourn refused

CORPORATIONS – application for orders for withdrawal of forms from records of ASIC and rectification of ASIC register – application for interlocutory injunction to restrain first defendant from lodging further documents on ASIC register – where first defendant lodged documents in plaintiff’s name to alter ASIC register – application for interlocutory injunction allowed
PRACTICE AND PROCEDURE – where first defendant seeks to file cross-claim – where cross-claim not confined to claim related to relief sought by plaintiff – where claims and relief sought expressed without particularity – effect on arrangements for hearing to claim

MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of decision of the Administrative Appeals Tribunal affirming refusal to grant a protection visa – whether Tribunal committed jurisdictional error – apprehended bias – whether Tribunal relied on fundamental error of fact – whether Tribunal failed to identify and assess a ‘receiving country’ under s 36(2)(aa) – appeal allowed

PRACTICE AND PROCEDURE — two applications for disqualification on the basis of apprehended bias by reason of judge’s involvement in hearing a previous proceeding between the applicants and the first and second respondents in the present proceeding — where judge rejected the first and second respondents’ previous challenge to the impartiality of an expert witness whom gave evidence in the previous proceeding and whom is likely to give evidence in the present proceeding — where judge also construed claims in the patent in the previous proceeding in a manner consistent with the construction advanced by the expert witness — where the proper construction of claims in a patent is a question of law — whether a fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to the resolution of the issues in the present proceeding — whether an apprehension of bias arises by reason of the applicants’ use of the term “workaround" in a letter to the Court

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – question of law – findings of fact – any error non-prejudicial – appeal dismissed
COMPENSATION – normal weekly earnings – agreement as to amount
PRACTICE AND PROCEDURE – withdrawal of admission – leave refused

COSTS – consideration of the circumstances in which the Court may depart from the ordinary rule as to costs – whether parties acted unreasonably in refusing offers of compromise – where outcome achieved only marginally better than the best offer – whether trustee in bankruptcy entitled to rely on offers made by the bankrupt to settle proceedings prior to appointment – where some offers made to a company controlled by the applicants in separate proceedings – whether exercise of trustee’s duties under s 19(1)(j) and (k) of Bankruptcy Act 1966 (Cth) are relevant to issue of costs – where none of the parties behaved wholly commercially or efficiently in the conduct of the litigation with regard to ss 37M and 37N Federal Court of Australia Act 1976 (Cth) – respondent ordered to pay 90% of applicants’ costs on a party and party basis.

PRACTICE AND PROCEDURE – application for non-standard discovery in patent infringement proceedings – application for access to confidential information in circumstances where individual concerned holds a dual role where making commercial decisions and providing instructions to solicitors – application for orders permitting litigation funder to access confidential information