Judgments

INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed. 

MIGRATION – Judicial Review – Where applicant did not provide an English language test 36 months prior to application – Tribunal had no power to decide otherwise – application dismissed

MIGRATION – application for judicial review – student visa – whether Tribunal erred in considering Ministerial Direction 69 – whether applicant was a genuine temporary entrant – jurisdictional error not established – application dismissed.

CONSUMER LAW – application for an order under s 100 of the National Credit Code authorising entry into residential premises for the purposes of taking possession of mortgaged goods – whether it is necessary for the applicant creditor to identify the particular residential premises in relation to which the applicant creditor seeks an order authorising entry – necessary to identify such residential premises – application for an order under s 101 of the National Credit Code for the delivery of mortgaged goods – whether necessary to prove that the person against whom such order is made has possession of the mortgaged goods – necessary to so prove – order made against respondent for delivery of mortgaged goods subject to respondent having liberty to apply to prove he no longer has possession of the mortgaged goods.

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

MIGRATION – protection visa – Administrative Appeals Tribunal – citizen of Malaysia – applicant claiming harm from his wife’s family for reasons of religion – Tribunal finding he could obtain effective police protection or reasonably relocate – no jurisdictional error disclosed.

MIGRATION – Student (subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant not a genuine temporary entrant – where applicant not enrolled in a course of study at the time of Tribunal decision – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.211 – no jurisdictional error – application dismissed

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority to affirm an earlier decision not to grant the applicant a protection visa – whether the Authority made irrational findings or unreasonably relied on omissions from the applicant’s entry interview in making adverse findings – whether the Authority acted unreasonably by failing to exercise the discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicant to an interview –  no jurisdictional error – application dismissed.

INTELLECTUAL PROPERTY – CONTRACT – Applicants allege contract (agency agreement) – breach of contract by fourth and seventh respondents – applicants allege tortious interference by the first, second, third, fifth, sixth, eighth, twelfth, fifteenth, sixteenth and seventeenth respondents, including as joint tortfeasors, with the contractual relations between the first applicant and the fourth and seventh respondent – inducing or procuring breaches of contracts – preventing or hindering the performance of contracts – applicants seeking compensatory damages for breach of contract and inducing breach of contract – applicants seeking equitable damages including reimbursement for the difference between the standard wholesale price and the price given based on the representations of the respondents

COPYRIGHT – Applicants allege copyright infringement, including liability as joint tortfeasors – applicants allege wrongful conduct of the respondents in relation to the manufacture, distribution, marketing, sale and supply of counterfeit freezeframe products in both Australia and China – applicants allege wrongful conduct of the respondents regarding the purchase for resale, sale, supply, and distribution of products in both Australia and China – applicants seeking compensatory damages in the alternative to an account of profits – damage to value of intellectual property – harm to applicants’ reputation and goodwill – applicants seeking additional damages under s 115(4) of the Copyright Act 1968 (Cth)

TRADE MARKS – Trade mark infringements in Australia – applicants allege infringement of applicants’ Australian registered freezeframe trade marks with regard to counterfeit freezeframe products – liability as joint tortfeasors – counterfeit products – trade mark infringements in China – infringements of applicants’ Chinese registered freezeframe trademarks – liability as joint tortfeasors – applicants seeking compensatory damages – diminution in the value of applicants’ freezeframe registered trademarks in both Australia and China – applicants seeking additional damages under s 126(2) of the Trade Marks Act 1995 (Cth) – additional damages for malicious trade mark infringement and under serious circumstances under Article 63 of the China Trade Mark Law

PASSING OFF – Applicants allege the respondents engaged in passing off in respect of counterfeit freezeframe products – liability for passing-off as joint tortfeasors – representations that the respondents were authorised to distribute freezeframe products in Australia – applicants seeking compensatory damages – applicants seeking exemplary damages

AUSTRALIAN CONSUMER LAW (ACL) – Applicants allege misleading or deceptive conduct in contravention of the ACL – representations as to the authenticity of counterfeit freezeframe products – representations regarding the sole and authorised distribution of freezeframe products in China – representations regarding the authorisation of distribution of freezeframe products in Australia – representations regarding the capacity and capability of selling large quantities of freezeframe products at high margins – breach of duty of care or liability as joint tortfeasors arising from the representations – misleading and deceptive conduct arising from the representations – breach of duty of care or liability as joint tortfeasors by silence – applicants seeking compensatory damages

BREACH OF CONFIDENCE – Applicants allege breach of confidential information – knowing involvement or assistance in breaches of confidence – obligation of confidence arising from contractual relations between the parties and pursuant to a Non-Disclosure Agreement – applicants seeking compensatory damages

BREACH OF FIDUCIARY DUTIES – Applicants allege breach of fiduciary duties arising from the contended relationships of confidence and agency – accessorial liability for breaches of fiduciary duties – applicants seeking compensatory damages – applicants seeking additional pecuniary relief based on the profits that the respondents derived from the supply of freezeframe products in Australia

NEGLIGENT MISSTATEMENT – Applicants allege negligent misstatement – duty to exercise reasonable care in making representations – applicants seeking compensatory damages – applicants seeking equitable damages including reimbursement for the difference between the standard wholesale price and the price given based on the representations of the respondents

CROSS-CLAIM – First, second, fifteenth and seventeenth respondents bring cross claim against the first applicant alleging misleading and deceptive conduct by silence in contravention of s 18 of the ACL – held cross-claim not made out   

BANKRUPTCY – Appeal against the decision of Trustee to admit proof of debt – Parties rights did not merge on execution of a Deed of Settlement because release and discharge was conditional on payment of sum of money as to which the Applicant defaulted – Where the Court did not exercise its discretion to go behind the judgment which gave rise to the proof of debt – Where the assignment of debts to the creditor was legally effective – Court confirmed decision of Trustee – Application otherwise dismissed

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – request for an adjournment – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider relevant information – refusal of adjournment request – no jurisdictional error.

MIGRATION - application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – consideration of the Authority’s application of s 473DD of the Migration Act 1958 (Cth) – found that it could not be inferred that the requisite assessment of the new information occurred – found the Authority conflated s 473DD(b)(i) and (ii) - found jurisdictional error – application allowed.

MIGRATION – application for judicial review – Safe Haven Enterprise Visa - where Immigration Assessment Authority affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 - where certain grounds raised by applicant seek impermissible merits review - whether the Authority erred by making a finding that was illogical or irrational – found the Authority’s reasoning was clear and intelligible – whether the Authority erred by failing to comply with s 473DD of the Act – found the Authority considered both limbs of s 473DD(b) before considering s 473DD(a) and provided clear reasons as to why it was not satisfied the new information met the criteria - found no jurisdictional error – application dismissed.

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application in a proceeding by first respondent – where the first respondent seeks suppression and non-publication orders over parts of, and annexures to, an affidavit filed by the applicant in the proceedings – where the first respondent submits the orders are necessary to prevent prejudice to the proper administration of justice in the first respondent discharging its statutory functions – where applicant submits that the prejudice asserted if the documents were not suppressed is speculative at best.

MIGRATION – Immigration Assessment Authority – protection visa - apprehended bias – whether the Authority took into account irrelevant considerations – whether the Authority made a finding based on unwarranted assumptions – whether the Authority failed to take into account relevant considerations.

CONSUMER LAW – Practice and procedure – where applicant applies for orders under s 100 and s 101 of the National Credit Code in relation to default by borrower of terms of a credit facility – where application has not been personally served – whether term of loan agreement engages r 10.28(1) of the Federal Court Rules – terms of loan agreement do not because r 10.28(1) of the Federal Court Rules applies to agreement for service of an originating application in a proceeding or of other documents in a proceeding – application therefore was not served – matter listed for further directions.

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant applicant a Temporary Protection visa – whether Authority failed to properly consider a claim – whether the Authority erred in finding there had been a variation in the applicant’s claims for protection – application dismissed.

MIGRATION - application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent - whether Tribunal failed to consider whether the applicants’ families opposed their marriage because it was interfaith - where certain grounds raised by applicants seek impermissible merits review – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION -  application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where grounds raised by applicant completely unparticularised – whether Tribunal erred by not affording the applicant procedural fairness – found the applicant was afforded a meaningful opportunity to appear, give evidence and present his case - whether the Tribunal breached s 359A obligations with respect to adverse information - found the Tribunal gave clear particulars of that information to the applicant in its s 359AA Statement -  where certain ground raised by applicant seek impermissible merits review -  whether Tribunal erred by not considering medical evidence -  found no jurisdictional error on behalf of the Tribunal.

INDUSTRIAL LAW – assessment of a pecuniary penalty for contravention of s 716(5) of the Fair Work Act 2009 (Cth) – first respondent in liquidation – where default judgment occurred following the second respondent’s non-engagement with proceedings – penalty determined – associated order made regarding distribution

INDUSTRIAL LAW - declarations of contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) made previously – penalty for contravention – relevant considerations.

MIGRATION – Administrative Appeals Tribunal –Regional Employer Nomination (Permanent) (Class RN) visas–whether the decision of the Tribunal is affected by legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed

INDUSTRIAL LAW – failure to comply with minimum terms and conditions in awards – level of pecuniary penalty to be imposed – where parties entered into a Statement of Agreed Facts – where parties agree on penalty – whether penalty agreed is appropriate – factors considered – HELD appropriate that a penalty be imposed in the terms agreed by the parties.

HUMAN RIGHTS – COVID -leave granted to bring proceedings against employer – leave to bring proceedings against occupier refused

MIGRATION – protection visa – Administrative Appeals Tribunal – applicant being the son of the applicant in CTW18 v Minister – applicant making no protection claims of his own.

MIGRATION – application for judicial review – where delegate of the first respondent cancelled the applicant’s student (subclass 500) visa (Visa) under s 116(1)(d) of the Migration Act 1958 (Cth) – where applicant not immigration cleared – consideration of whether s 109 applies when considering to cancel visa under s 116(1)(d) of the Migration Act 1958 (Cth) – found that the provisions of s 109 do not apply to the exercise of power under s 116(1)(d) – application dismissed.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant had attempted to apply for an extension of time in which to make an application to the Tribunal – where the Tribunal correctly found that it lacked jurisdiction to review the Delegate’s decision – application dismissed

BANKRUPTCY – costs – where trustee in bankruptcy of co-owner of two properties commenced an application against the other co-owner for orders under s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act) on the basis that the trustee in bankruptcy held a 50% legal and equitable interest in both properties – where after a hearing the other co-owner was held to have successfully contended that in relation to one of the two properties she held an equitable interest greater than her 50% legal interest in that property – whether the usual order for costs made in applications under s 66G of the Conveyancing Act should be made in circumstances where the trustee in bankruptcy had no choice but to apply for an order under s 66G of the Conveyancing Act, where offers to settle had been made, but where nevertheless the trustee in bankruptcy failed on a dominant and separable issue – order made that the trustee in bankruptcy is entitled to 50% of his costs assessed on a party and party basis to be paid out of the proceeds of sale of the properties the subject of the s 66G application.

BANKRUPTCY – Application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 77CA of the Bankruptcy Act 1966 (Cth).

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied procedural fairness to the applicant – whether the Tribunal failed to consider applicant’s circumstances – where oral reasons delivered by the Tribunal – no jurisdictional error established – application dismissed.

MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – review of Administrative Appeals Tribunal decision – no approved nomination at the time the applicant made application for merits review – whether the decision to refuse the visa application was a Part 5-reviewable decision pursuant to s 338 of the Migration Act 1958 (Cth) – whether the Tribunal had jurisdiction to undertake a merits review of the visa refusal decision – whether the applicant had standing to challenge decisions relating to the nominator’s application for approval as a standard business sponsor – futility – application dismissed

MIGRATION - application for judicial review – Safe Haven Enterprise Visa - where Immigration Assessment Authority affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 -  whether Authority denied the applicant procedural fairness by failing to provide him with a copy of the Delegate’s decision when requested – found the applicant was validly notified of the Delegate’s decision – whether finding’s made by the Authority were illogical or irrational  – found that there was a proper and logical basis for the Authority’s findings – found no jurisdictional error – application dismissed.

MIGRATION – Immigration Assessment Authority – protection visa – whether there was a fraud on the Authority by the applicant’s agent – whether the agent inaccurately advised the applicant that he could not submit new information to the Authority – whether it was unreasonable for the Authority to not seek further submissions from the applicant when it was apparent that the submissions that had been lodged contained information unrelated to the applicant

MIGRATION – protection visa – application refused – whether Tribunal decision was illogical, irrational or unreasonable – whether Tribunal made inconstant findings – whether Tribunal misconstrued or misunderstood the meaning of the phrases ‘serious harm’ and ‘significant harm’ - jurisdictional error not established – application for judicial review dismissed

CONSUMER LAW – Practice and procedure – where applicant creditor applies for orders under s 100 and s 101 of the National Credit Code in relation to default by borrower of terms of a credit facility – where application has not been personally served but is said to have been served according to the term of the loan agreement between the creditor and the debtor – whether the term of the loan agreement engages r 10.28(1) of the Federal Court Rules – terms of loan agreement do not do so because r 10.28(1) of the Federal Court Rules applies to an agreement for service of an originating application or for service any other document filed in the proceeding – application therefore has not been served – matter listed for further directions.

BANKRUPTCY – application for review of a registrar’s decision – where application for review of registrar’s decision made out of time - hearing de novo of creditor’s petition - where the Court does not have power to make certain orders sought by applicant – consideration of the requirements under s 52 of the Bankruptcy Act 1966 (Cth) to make a sequestration order - whether service of the Petition and Amended Petition was effected -  found jurisdictional pre-requisites met – application dismissed.

MIGRATION – application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent – where certain grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant do not assert any jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) visa – where applicant concedes not enrolled in a course of study at the time of the Tribunal’s decision – oral submissions raised at hearing – where certain grounds raised by applicant were entirely misconceived – where certain grounds raised by applicant entirely unparticularised - found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA fell into the species of error considered in cases such as ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 and DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 – where demeanour had been important to the Delegate’s favourable credibility assessment – where the IAA departed from that assessment by reference to evidence including documentary evidence of the applicant’s appearance – where the IAA did so whilst lacking the Delegate’s advantage of seeing the applicant give his evidence in person – application succeeds

MIGRATION – Protection Visa – Where claim that it was not reasonable for the applicant to relocate within Pakistan because of his family did not clearly emerge from the materials – Application dismissed

PRACTICE AND PROCEDURE – application in a proceeding for the matter to be transferred to another registry – factors for consideration.

MIGRATION – Judicial review – application for an extension of time – Minister required by Act to notify the Applicant of the delegate’s decision – dismissal for non-appearance.

INDUSTRIAL LAW – general protections –adverse action – whether the applicant worked unreasonable additional hours within the meaning of s 62 of the Fair Work Act 2009 (Cth) – whether the applicant worked overtime within the meaning of the Graphic Arts, Printing and Publishing Award 2020 ––whether the first respondent failed to pay the applicant overtime rates – consideration of the principles of set-off and restitution based on common mistake – consideration of the applicant’s classification under the Award – consideration of the kind of work and duties which constituted the major and substantial part of the applicant’s employment – whether adverse action taken against applicant – reverse onus not discharged by employer in relation to two of six instances of adverse action - contravention of s 340(1) of the Fair Work Act 2009 (Cth) established - found accessorial liability of the second and third respondent for the two established instances of adverse action.

MIGRATION – Protection Visa – Where there was no material which support a finding that the Applicant was wholly or substantially reliant on another family member for financial, psychological or physical support – Where the Tribunal made no error in its conclusion that the Applicant should not be granted a visa on the basis that he met the same family unit criterion – Where the Tribunal did not act unreasonably in its assessment of the material because there was an evident and intelligible justification for its finding – Where the Tribunal only had to consider the country information where relevant – Application dismissed.

FAIR WORK APPEAL – FAILURE TO COMPLY WITH A COMPLIANCE NOTICE – application for imposition of pecuniary penalties and other relief - underpayment – pecuniary penalties ordered

INDUSTRIAL LAW – FAIR WORK – contravention of a statutory compliance notice – application for relief – non-participation of Respondent in relation to question of appropriate relief – whether an order under s.545(1) requiring compliance with a statutory compliance notice is an order in relation to an underpayment for purposes of the time limitation at s.545(5) and whether appropriate to order interest on an amount owed under s.547 – application granted, with orders that the Respondent must comply with the statutory compliance notice and pay a pecuniary penalty.

CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle and entry into residential premises to repossess the motor vehicle – credit contract on the basis of which relief sought is not covered by the Code – no other relief claimed – application dismissed.

MIGRATION – Judicial review – student visa – whether Applicant was a genuine temporary entrant under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – no error in reasons of the Tribunal – application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – where grounds raised by applicant entirely unparticularised – oral claims made at hearing – found Authority had regard to relevant information and circumstances – found no jurisdictional error on behalf of the Authority.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where certain grounds raised by the applicant do not assert any jurisdictional error – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal did not have regard to relevant circumstances – found Tribunal had regard to all relevant considerations – found no jurisdictional error on behalf of Tribunal – application dismissed.