Please select a judgment type from the filter below to view relevant judgments. On the AustLii website you can access previous judgments types FCoA (Appeals) judgments, FCoA First instance judgments, and FCC judgments.
Division 2 - General federal law
INDUSTRIAL LAW – Alleged contravention of general protections – termination of employment – reason for termination of employment – whether because of exercise of workplace right in relation to alleged underpayment – whether fraud or misappropriation by employee – whether because of industrial activity by or on behalf of the employee – whether reason for termination of employment prohibited reason PRACTICE AND PROCEDURE – Pleading of accessorial liability – notice to produce – whether to set aside subpoena – whether leave to file further affidavit concerning alleged misappropriation of cash – relevance of truth or falsity of alleged operative or substantial reason
MIGRATION – whether the (then) Administrative Appeals Tribunal erred in not granting the applicant a protection visa – where the applicant claims the Tribunal did not consider their evidence, unfairly assessed their credibility, and that they were denied procedural fairness – application dismissed
MIGRATION – regional employer nomination (permanent) (class RN) (subclass 187) visa – where delegate refused to grant the applicants visas – application for review of decision of the (then) Administrative Appeals Tribunal (Tribunal) lodged out of time – application for extension of time – where Tribunal affirmed delegate’s refusal – where applicant failed to satisfy cl 187.233 of the Migration Regulations 1994 (Cth) – applicant not subject of an approved nomination – no arguable case of jurisdictional error – application for extension of time dismissed
MIGRATION – judicial review – Administrative Appeals Tribunal – whether the Tribunal wrongly considered the applicant’s circumstances – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant – No jurisdictional error – application dismissed
PRACTICE AND PROCEDURE – Where the applicant failed to appear at a listing before the Court – application dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
BANKRUPTCY – application to review a sequestration order made by a registrar – de novo hearing of creditor’s petition – alleged act of bankruptcy being failure to comply with a bankruptcy notice –– whether creditors petition invalid for non-compliance with rules – where no affidavit of debt or affidavit of search - whether bankruptcy notice meets the essential requirements of the Act – whether bankruptcy notice liable to mislead – where interest claimed on debt calculated by reference to collateral agreement – whether bankruptcy notice conflates separate claims – whether debtor is solvent – debtor entitled to relief - bankruptcy notice and sequestration order to be set aside
INDUSTRIAL LAW – Practice and procedure – application for summary judgment of two separate proceedings in which the applicant claims the respondent contravened s 340(1), s 344, s 351(1), and s 352 of the Fair Work Act 2009 (Cth) – whether applicant has articulated a reasonably arguable case – whether there are no reasonable prospects the applicant will be able to formulate a reasonably arguable case - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any of his claims for relief – proceedings dismissed. HUMAN RIGHTS – Practice and procedure – application for summary judgment in proceeding where the applicant alleges he suffered from a disability but the respondent employer failed to make adjustments and for that reason discriminated against the applicant contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth) – whether there are no reasonable prospects that the applicant will be able to formulate a reasonably arguable case based on unlawful discrimination - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any claim that the respondent engaged in unlawful discrimination by failing to make adjustments for the applicant – proceeding dismissed.
INDUSTRIAL LAW – Imposition of penalty for contravention of s 716(5) of the Fair Work Act 2009 – failure to comply with compliance notice – lack of cooperation – no contrition – no corrective action
INDUSTRIAL LAW – where the applicant claims that the respondents breached sections 45, 536, 323, 343, 345 of the Fair Work Act 2009 (Cth) and the Hospitality Industry (General) Award 2020 – finding that the respondent contravened section 45 of the Act by failing to pay the applicant under clause 11.5 of the Award – finding that the respondent contravened section 536 of the Act by failing to provide a payslip with the required information within the required time frame – whether the second to fourth respondents were ‘knowingly involved’ in any contraventions – declarations made.
MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misapplied s 116 of the Migration Act 1958 (Cth) – whether the applicant was given the requisite opportunity to present his case before the Tribunal – incorrect reference to a legislative provision regarding a non-disclosure certificate – materiality – application dismissed
MIGRATION – application for extension of time – judicial review – protection visa refusal – 315 days late – inadequate explanation – no arguable case of jurisdictional error – application dismissed
MIGRATION – Judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority erred in finding that information was not relevant within meaning of s 473DC(1) – whether Authority erred in not being satisfied that new information was credible within meaning of s 473DD(b)
MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal misapplied the law–whether the Tribunal applied the wrong legal test– whether the Tribunal ignored relevant material – whether the Tribunal considered irrelevant material – whether the Tribunal was unreasonable – no jurisdictional error established – application dismissed
PRACTICE AND PROCEDURE – COSTS – Where Minister sought costs significantly in excess of amount provided in costs schedule to the Court Rules in respect of migration proceedings (scale amount) – where detailed evidence prepared and filed for Minister was required to meet ground of review – where applicant opposed costs in excess of scale amount including on basis that to seek such costs was contrary to model litigant obligation of Minister – role of Court is not to undertake detailed costs assessment
MIGRATION – judicial review – student visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to comply with section 54 of the Migration Act – whether the Tribunal misconstrued the Regulations – no jurisdictional error found – application dismissed
MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed
MIGRATION – application for extension of time – judicial review – Higher Education Sector (subclass 573) visa cancellation– one day late – inadequate explanation – no arguable case of jurisdictional error – application dismissed
MIGRATION – application for judicial review –employer nomination (subclass 186) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed
PRACTICE AND PROCEDURE – Application for leave to re-open – relevant principles – finding that the interests of justice are better served by granting leave to re-open in the particular circumstances of the case – leave to re-open granted on condition of certain Court fees being paid by the first respondent – referral of the matter for pro bono assistance.
PRACTICE AND PROCEDURE – Application for interlocutory injunction to restrain respondent from terminating the applicant’s employment – whether prima facie case is sufficiently strong – whether balance of convenience favours grant of interlocutory relief – application for interlocutory relief dismissed.
BANKRUPTCY – Failure to lodge a Statement of Affairs – Bankrupt for over 10 years – Where Trustee has taken reasonable steps to notify the bankrupt – Where Trustee has taken reasonable steps to investigate creditors – Whether the Court ought to exercise its discretion.
INDUSTRIAL LAW – FAIR WORK – responsible franchisor entity – alleged contravention of s 558B(1)(d) of the Fair Work Act 2009 (Cth).
PRACTICE AND PROCEDURE – application in a proceeding to set aside subpoenas – whether applicant has demonstrated a legitimate forensic purpose in seeking production of documents – whether the documentation sought have an apparent relevance to issues on the summary judgment application - categories in the subpoenas amended.
INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – where complaints made by employees themselves involved in deceptive practices after falling out with respondent – where orders made accordingly.
INTELLECTUAL PROPERTY – Final relief – scope of delivery up orders - whether applicant’s proposed form of order, if made, might call for the identification and destruction of files or data beyond the files and data that are the subject of findings made in the reasons for judgment in relation to which the delivery up orders are intended to be made – delivery up orders to be made in the form proposed by respondents.
MIGRATION – Whether Tribunal erred by failing to provide Review Medical Officer of the Commonwealth with previous Medical Officer opinion and costs estimate – whether failure to comply with s 359A of the Migration Act including by failing to provide copy of PIC 4005 to applicants.
MIGRATION – Costs – application for costs sought above the scale following a final hearing – fixed costs order made.
MIGRATION – decision of the Administrative Appeals Tribunal – Protection (Subclass 866) visa – where the Tribunal refused to adjourn the hearing – where the Tribunal refused to exercise its discretion to postpone its decision making – concerns over the authenticity of documents provided from Iran – grounds of judicial review have no merit – application dismissed with costs.
BANKRUPTCY – Ex Tempore - application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 54 of the Bankruptcy Act 1966 (Cth).
CHILD SUPPORT – JURISDICTION – appeal from a decision of the Administrative Appeals Tribunal – where the applicant appealed under section 44AAA of the Administrative Review Tribunal Act 1975 (Cth) – where the decision on appeal was made by a Deputy President of the Tribunal – consideration of jurisdiction under section 44 – consideration of whether the matter was heard on first review pursuant to section 3 – finding that the Federal Circuit and Family Court of Australia does not have jurisdiction to hear the appeal – appeal dismissed
CONSUMER LAW – application under s 100 and s 101 of the National Credit Code for access to residential premises for the purpose of taking possession of a vehicle claimed to be the subject of a security interest, and an order for possession of a vehicle – whether order should be made deeming service – whether preconditions for making of orders under s 100 and s 101 satisfied – orders made.
INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.
INDUSTRIAL LAW – FAIR WORK – hospitality industry – contraventions of general protections and various minimum entitlement, regular payment and payslip obligations arising under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect of liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.
INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.
PRACTICE AND PROCEDURE – Application made by the First Respondent to amend defence – Where application granted – Greater weight given to the Respondents being able to advance all arguments than any prejudice to the Applicant
PRACTICE AND PROCEDURE – Affidavits – Late filing of Respondents’ affidavits permitted – No material prejudice to the Applicant
MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Review Tribunal – whether the Tribunal failed to consider all the circumstances of the parties’ relationship, including all the matters set out in r 1.09A(3) of the Migration Regulations 1994 (Cth) and failed to consider whether the applicant suffered family violence by the sponsor – no jurisdictional error established – application dismissed
MIGRATION LAW – Where the applicant failed to establish that he had an ownership interest in one or more main businesses over a two-year period before he made application for a visa – where no jurisdictional error established on the part of the Tribunal – application dismissed.
MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied genuine temporary entrant criteria for purpose of visa – applicant did not satisfy cl 602.212(6) – whether decision was decision was legally unreasonable - no jurisdictional error established – application dismissed.
MIGRATION LAW – Where it was claimed that the Tribunal had misunderstood and misapplied subordinate legislation – where it was claimed that Tribunal had made a finding without there being any evidence to justify the finding - where claims made with an eye too keenly attuned to error – no jurisdictional error established – application dismissed.
MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s review of a visa application refusal depended upon the outcome of its review of a nomination refusal decision – whether the Tribunal misunderstood centrally relevant contentions made by the applicant in the nomination refusal matter – application dismissed
INDUSTRIAL LAW – CIVIL PENALTIES – Where in the liability judgment the court made declarations that the First Respondent had contravened a compliance notice and that the Second Respondent was involved in the contravention – Penalties imposed
INDUSTRIAL LAW – OTHER RELIEF – Whether appropriate to order the First Respondent to take the steps required of it in the compliance notice under s. 545(1) or 545(2)(d) of the FW Act – Where s. 545(2)(d) inserted into the FW Act after the date of the First Respondent’s failure to comply – Whether order able to be framed with precision so that the First Respondent knew what it had to do for compliance – Held appropriate to make a remedial order for the First Respondent to take the steps required of it in the Compliance Notice – Interest.
MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not consider all of the information before it – Where the applicant was found not to be a genuine temporary entrant – Application dismissed.
MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Impermissible merits review – Where the applicant was found not to be a genuine temporary entrant – Application dismissed.
MIGRATION – judicial review – Administrative Appeals Tribunal dismissed application after applicant failed to appear at hearing – whether decision of Tribunal legally unreasonable – Tribunal received written notice of appointment of authorised recipient after inviting applicant to hearing – whether Tribunal’s failure to notify authorised recipient of hearing involved procedural unfairness.
COSTS – whether inability of applicant to meet costs order against him relevant to making or amount of order
MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – protection (subclass 866) visa – where the applicant claims the Tribunal’s decision was not capable of being reached on the material before it or on lawful grounds – no jurisdictional error established – applicant dismissed with costs.
MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant information – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal acted unreasonably – no jurisdictional error – application dismissed.
MIGRATION – Business Innovation and Investment visa – decision of the then Administrative Appeals Tribunal – whether the interpretation services used at the Tribunal hearing were inadequate – whether the length of the Tribunal hearing was “too short” – whether the Tribunal failed to give the first applicant “clear particulars” – whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application – whether the Tribunal erred by affirming the delegate’s decision in relation to the second, third and fourth applicants – no jurisdictional error – application dismissed.
MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal considered irrelevant evidence or information – whether the Tribunal failed to consider evidence or information before it – whether the Tribunal failed to give appropriate weight to certain factors – whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled – whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances – whether the Tribunal’s findings were illogical, irrational or legally unreasonable – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.
MIGRATION – Judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – no point of principle.
MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misapplied the relevant legal tests – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to seek further information or clarification in relation to critical aspects of the applicant’s protection claims – whether the conduct of any migration agent or representative assisting the applicant with completing of his visa application amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.
MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider a protection claim (or an integer of a claim) – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – whether the Tribunal relied on incorrect or irrelevant information – whether the Tribunal failed to make necessary enquiries – no jurisdictional error – application dismissed.
