Courts
Recent published judgments from the courts that serve Melbourne, alongside the Federal Court and the High Court of Australia.
Federal Court of Australia
PRACTICE AND PROCEDURE – application for review of registrar’s order for substituted service of bankruptcy notice – hearing de novo of application for substituted service pursuant to r 10.24 and/or r 10.49 of the Federal Court Rules 2011 (Cth) (Rules) or alternatively deemed service under r 10.23 and/or r 10.48 of the Rules – where bankruptcy notice emailed to the respondent – where insufficient e
Federal Court of Australia
PRACTICE AND PROCEDURE – Application for urgent interim injunction restraining company from transferring funds out of bank accounts – where company holds money on behalf of related company in liquidation – where there is a risk that the company may dissipate assets by transferring funds to China – where no substantive proceedings on foot – whether prima facie case established – whether balance of
Federal Court of Australia
CORPORATIONS – Application by liquidators for pooling orders under Corporations Act 2001 (Cth) s 579E – where members of corporate group collectively operated a single business using intermingled assets and liabilities – where no records of intercompany indebtedness kept – where individual liquidations would require substantial expenditure – whether just and equitable to grant relief – orders made
Federal Court of Australia
MIGRATION – judicial review – decision of Minister to set aside Administrative Appeals Tribunal decision revoking cancellation of the applicant’s visa – Minister’s decision made 13 months after the Tribunal decision – proper construction of s 501BA of the Migration Act 1958 (Cth) – no requirement under s 501BA to exercise the power within a reasonable time MIGRATION – whether Minister’s exercise o
Federal Court of Australia
BANKRUPTCY AND INSOLVENCY – application for interim injunction restraining transfer or encumbrance of property – where ex parte freezing orders were made against the third respondent – whether there were material non-disclosures on part of the applicant – whether freezing orders should be extended – freezing orders varied
Federal Court of Australia
PRACTICE AND PROCEDURE – Dismissal for want of prosecution – where applicant filed application but took no further step in proceedings – where arrangements made for pro bono representation but applicant failed to give instructions – whether dismissal appropriate in the circumstances
Federal Court of Australia
PRACTICE AND PROCEDURE – application for order under s 15 of the Administrative Decisions (Judicial Review) Act 1976 (Cth) suspending the operation of an administrative decision – application for interlocutory injunction – where delegate of the Minister decided that proposed action was not a “controlled action” for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (
Federal Court of Australia
PRACTICE AND PROCEDURE – rule 39.05(a) of the Federal Court Rules 2011 (Cth) – application to set aside default judgment – where applicant failed to file a Notice of address for service after his solicitors ceased acting for him – where applicant has no satisfactory explanation for failure to do so – where applicant aware of proceedings and failure apparently deliberate – where it is accepted that
Federal Court of Australia
BANKRUPTCY – application by trustee for approval of remuneration – where trustee's remuneration fixed by creditors – where sale of bankrupt's home occurred six years after sequestration order – where trustee made inquiries into bankrupt's income but did not perform income contribution assessment until four years after sequestration order - consideration of the Court's supervisory jurisdiction over
Federal Court of Australia
PRACTICE AND PROCEDURE – application for determination of substantive proceeding on the papers without an oral hearing – whether requirements of s 20A of the Federal Court of Australia Act 1976 (Cth) are met – where applicant is self-represented and claims to be affected by hearing loss and tinnitus – where applicant submits material facts are uncontested and that issues arising from existing docu
Federal Court of Australia
BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice dismissed by judicial registrar – whether claim to money paid into Court constitutes a cross-demand within section 40(1)(g) Bankruptcy Act 1966 (Cth) – application dismissed with costs
Federal Court of Australia
PRACTICE AND PROCEDURE – application for stay of judgment pending appeal – where primary judge had granted a stay with conditions – where appellant unable to meet judgment sum – whether grounds of appeal are arguable – whether undertaking by appellant sufficient to secure judgment debt – whether balance of convenience favours granting of a stay
Federal Court of Australia
INDUSTRIAL LAW – application for statutory compensation pursuant to provisions of the Fair Work Act 2009 (Cth) (“FW Act”) – respondent alleged to have contravened an applicable enterprise agreement (and thereby s 50 of the FW Act) in failing to afford entitlements to two of its employees both during and upon termination of employment – where certain contraventions admitted, and some of them remedi
Federal Court of Australia
CORPORATIONS – application under s 473A of the Corporations Act 2001 (Cth) to fill a vacancy in the office of liquidator appointed by the Court – current liquidator retiring – replacement with liquidators of the same firm – application approved BANKRUPTCY AND INSOLVENCY – application under s 180 of the Bankruptcy Act 1966 (Cth) to accept the resignation of a registered trustee – application under
Federal Court of Australia
PRIVILEGE – legal professional privilege – third party reports – investigations into whistleblower allegations –common law principles – whether reports and related documents were created, commissioned or obtained for the dominant purpose of providing legal advice
Federal Court of Australia
PRACTICE AND PROCEDURE — where the applicant seeks orders striking out the respondent’s defence and final remedies – where the applicant alleges an abuse of process – where the applicant has asserted facts that have no apparent relevance or evidentiary support – interlocutory relief refused CONTEMPT OF COURT — where the applicant alleges that a non-party has committed a contempt of court by publis
Federal Court of Australia
BANKRUPTCY — application for review of decision of a Registrar pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court (Bankruptcy) Rules 2016 (Cth) to dismiss a petition of creditors — where debtor failed to comply with bankruptcy notice — where other matters required under s 52 of the Bankruptcy Act 1966 (Cth) are satisfied — sequestration order made
Federal Court of Australia
CORPORATIONS – corporate group involved in mining in Queensland – application to terminate deed of company arrangement pursuant to section 445D Corporations Act 2001 (Cth) – omission in report to creditors – continuance of deed of company arrangement avoids investigations into conduct of directors – company likely to continue to be insolvent – application to appoint liquidators based in Queensland
Federal Court of Australia
CONSUMER LAW – consumer credit facilities held with bank respondent – overdue payments reported to credit reporting agencies – whether adverse credit reports correctly made – whether the conduct of the bank respondent unconscionable within the meaning of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) – proceeding dismissed
Federal Court of Australia
MIGRATION – application for judicial review of a decision of the Administrative Review Tribunal – where applicant’s visa was subject to mandatory cancellation pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where delegate of the Minister did not revoke mandatory cancellation – where Tribunal affirmed decision of the delegate – application for Direction 110 – Tribunal found that mental heal
Federal Court of Australia
TRADE MARKS – section 177 of the Trade Marks Act 1995 (Cth) – application for word PISCO to be registered as a certification mark – appeal from a decision of a delegate of the Registrar of the Australian Trade Mark Office – whether certification trade mark sought is inherently adapted to distinguish – whether certification trade mark sought is capable of distinguishing by reason of use or other ci
Federal Court of Australia
PRACTICE AND PROCEDURE – application for freezing orders – where applicant’s case difficult to discern from material – whether applicant had established risk of dissipation – whether balance of convenience favoured the making of freezing orders – application for freezing orders dismissed
Federal Court of Australia
MIGRATION – urgent application for interim order restraining the respondent from removing the applicant from Australia – where the applicant alleged he was not aware of imminent deportation – where the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) – where the delegate of the Minister did not revoke cancellation – where requirements in relation to service of the del
Federal Court of Australia
PRACTICE AND PROCEDURE – application under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceeding – discontinuance approved
Federal Court of Australia
PRACTICE AND PROCEDURE - application for transfer of proceedings to the Victorian District Registry – presence of exclusive jurisdiction and governing law clauses in applicable contracts – no question of principle – balancing of discretionary factors - proceedings transferred
Federal Court of Australia
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – dispute concerning the validity of Northern Territory laws (being ss 14, 22 and 66 of the Administration and Probate Act 1969 (NT) and ss 9, 10, 11 and 14 of the Burial and Cremation Act 2022 (NT) which confer powers of decision making over burial and regulate the inheritance of an intestate estate), in so far as the laws apply to a deceased Aborigin
Federal Court of Australia
PRACTICE AND PROCEDURE – interlocutory application to set aside subpoena – where subpoena sought for applicant's medical records – - where the applicant's mental health is at the heart of the case - where subpoena has legitimate forensic purpose in relation to issues in proceedings – application refused
Federal Court of Australia
INDUSTRIAL LAW – application for relief pursuant to a “commitment amount contract” and employment contract – whether commitment amount contract varied or replaced – whether commitment amount contract was replaced by an Employee Share Option Plan – whether applicant is estopped from resiling from a representation or promise that she wished to replace commitment amount contract with the Employee Sha
Full Court of the Federal Court of Australia
DEFAMATION – appeal from judgment dismissing defamation proceedings – where appellant spectators pleaded that television broadcasts conveyed imputations that they had engaged in racist conduct towards rugby player during match – whether primary judge erred in finding that imputations pleaded against second and third respondents in respect of commentary concerning the conduct of the appellants at t
Full Court of the Federal Court of Australia
COSTS – whether single costs order should be made for three proceedings – whether an issue-by-issue approach to costs appropriate – whether costs order by primary judge should be set aside or varied – whether costs should be assessed on a lump-sum basis