ADMINISTRATIVE LAW – judicial review of a decision of the Registrar of the National Native Title Tribunal – application to review the decision to register six indigenous land use agreements – whether applicant denied procedural fairness – where applicant did not object to registration pursuant to s 24CI of the Native Title Act 1993 (Cth) – Consideration of Div 3 Subdiv C of Pt 2 of the Native Title Act 1993 (Cth)
PRACTICE AND PROCEDURE – application for dismissal of the claim pursuant to s 31A of the Federal Court Act of Australia 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) – whether claim enjoyed reasonable prospects of success – whether claim disclosed a reasonable cause of action

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0797

PRACTICE AND PROCEDURE – application for non-publication and suppression order over reasons for judgment

COSTS – application for preliminary discovery substantially successful – whether prospective applicant should receive costs where substantially successful in application – Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (No 2) [2019] FCA 657 considered –each parties’ costs to be costs in the cause of substantive proceeding if commenced – if no substantive proceeding commenced, respondents awarded 50% of their costs of and incidental to the application

PRACTICE AND PROCEDURE – discontinuance – discharge of interim orders – where interim injunctions and freezing orders made pursuant to ss 1323 and 1324 of the Corporations Act 2001 (Cth) on application by the Australian Securities and Investments Commission – where no substantive assets identified to satisfy potential claims – where no potential ‘aggrieved persons’ opposed the discharge

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where primary judge dismissed judicial review application of decision of Administrative Appeals Tribunal – whether certificate issued under s 375A of the Migration Act 1958 (Cth) was valid – whether disclosure of certificate constituted a denial of procedural fairness – whether appellant denied procedural fairness under s 359AA or s 359A of the Migration Act 1958 (Cth) – whether errors were jurisdictional errors – appeal dismissed

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where primary judge dismissed judicial review application of decision of Administrative Appeals Tribunal – whether certificate issued under s 375A of the Migration Act 1958 (Cth) was valid – whether disclosure of certificate constituted a denial of procedural fairness – whether errors were jurisdictional errors – whether declaratory relief should nonetheless be granted – appeal dismissed

PRACTICE AND PROCEDURE – appeal from a decision of the Australian Financial Complaints Authority in relation to the applicant’s eligibility for a spouse pension – objection to competency by the first respondent – interlocutory application by the first respondent seeking summary dismissal, a permanent stay or strike out of the originating application – notice of appeal struck out – applicant given an opportunity to file an amended notice of appeal

PRACTICE AND PROCEDURE – costs – costs follow the event – relief to be confined to that claimed in originating application

MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority – adverse credibility findings made against appellant based on inconsistencies and implausibility – whether credibility finding irrational – role of proportionality in context of credibility finding – appeal dismissed

ADMINISTRATIVE LAW – appeal from a decision by the Administrative Appeals Tribunal (AAT) affirming a reviewable determination of Comcare that the applicant’s incapacity entitlement under s 19 of the Safety, Rehabilitation and Compensation Act was $0 because his normal weekly earnings under s 8(10)(a) were calculated as $0 – whether AAT erred in finding that the applicant was no longer entitled to receive compensation payments from 11 September 2017 – whether the AAT should have found that Comcare was liable to make continuing payments under s 19 with reference to s 8(10)(b) because the applicant ceased to be employed by the Commonwealth from 24 February 2017 – notice of appeal dismissed with costs

CONSUMER LAW – misleading or deceptive conduct – false or misleading representations about goods or services – admitted contraventions of ss. 18 and 29(1)(m) of the Australian Consumer Law – where implied representation made that users of the PlayStation Network do not have guarantees as to the quality, functionality, completeness, accuracy or performance of purchased digital games – where representations made to Australian consumers that users of the PlayStation Network could not obtain a refund of funds added to the PlayStation Network wallet – where various representations made to five individual users of the PlayStation Network in respect of the availability of a refund – whether agreed relief appropriate having regard to all relevant circumstances

MIGRATION – appeal from decision of single judge dismissing application for judicial review of Minister’s decision not to exercise power under s 501CA(4) of the Migration Act 1958 (Cth) – whether primary judge erred in determining Minister’s finding that appellant’s rehabilitation “has not been tested in the community" was not attended by jurisdictional error – whether primary judge erred in determining Minister did not fail properly to consider hardship to appellant arising from reduced access to health services in Tonga

PRACTICE AND PROCEDURE – documents produced under compulsion at Royal Commission – whether documents protected under ss 118 and 119 of the Evidence Act 1995 (Cth) – whether documents were created for dominant purpose of provision of legal advice – whether documents were protected by s 17(2) of Royal Commissions Act 1923 (NSW) – discussion of scope of s 17(2) of Royal Commissions Act 1923 (NSW)

MIGRATION – where Immigration Assessment Authority (IAA) affirmed decision not to grant the appellant a safe haven visa – appeal from Federal Circuit Court dismissing application for judicial review of IAA decision – whether IAA failed to consider country information so as to fall into jurisdictional error – principles governing drawing of inferences in context of reasons prepared in accordance with s 473EA, Migration Act – whether IAA required to consider the appellant’s risk profile against UNHCR Guidelines – whether IAA failed to assess appellant’s claims cumulatively – appeal dismissed

CONSUMER LAW – application by regulator for declarations of contraventions, disqualification order, pecuniary penalties and publication orders – where facts and proposed orders agreed by parties – whether company engaged in misleading conduct in contravention of s 18(1) of Australian Consumer Law – whether company made false representations in contravention of s 29(1)(l) and s 29(1)(m) of ACL – whether company engaged in unconscionable conduct in contravention of s 21 of ACL – consideration of standard of conscience fixed by statutory notion of unconscionable conduct – where no indication that company’s conduct exploited vulnerability of investors – consideration of quantum of appropriate penalty for company – whether agreed quantum of penalty for sole director and secretary of company within permissible range – proposed orders made save as to orders declaring unconscionable conduct

MIGRATION – refusal of protection visas – overlooking relevant evidence – whether Tribunal’s credibility findings were illogical or irrational – appeal allowed

MIGRATION – application for judicial review of departmental officer’s decision not to refer to the Minister a request for the Minister to exercise power under s 351 of the Migration 1958 (Cth) – decision made by reference to Minister’s guidelines – whether decision legally unreasonable – whether second submission made by applicant to Department constituted repeat request under Minister’s guidelines

BANKRUPTCY AND INSOLVENCY – creditor’s petition seeking sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (Act) against the estate of the respondent – petition opposed on the basis of an asserted offsetting claim under s 52(2) of the Act – whether the respondent could demonstrate “other sufficient cause" why a sequestration order ought not to be made for the purposes of s 52(2)(b) – respondent’s estate sequestrated under the Act

CONTRACTS – release – release barring contemplated proceedings
ESTOPPEL – issue estoppel – res judicata – earlier proceedings in respect of different properties the subject of the same mortgage document
PRACTICE AND PROCEDURE – injunctions – interlocutory injunction – no serious question to be tried – balance of convenience