Judgments

PRACTICE AND PROCEDURE – Discovery of documents – documents concerning alleged debt and unpaid wages, money transfers to superannuation account, superannuation guarantee audit and long service leave payment – whether discovery in the interests of the administration of justice – whether discovery likely to contribute to fair and expeditious conduct of the proceedings – other matters relevant to discovery – where claim made in another Court for long service leave discontinued upon payment – observations on estoppel by deed and abuse of process – where consequential loss claimed not dependent upon existence of documents sought to be discovered – whether documents in possession, power or control of parties – observations on documents in possession of parent company – whether orders sought too broad

INDUSTRIAL LAW – Fair work – general protections application – claims of underpayment and non-payment of wages and superannuation – claims of consequential loss arising from delayed payment of long service leave payment 

BANKRUPTCY – Application for review of a sequestration order made by a registrar – sequestration order sought on the basis of unsatisfied judgment debts – where the debtor asserts there is sufficient cause for the sequestration order to not be made – whether the debtor has shown he has the ability to pay his debts as they fall due – act of bankruptcy – hearing de novo – application dismissed     

BANKRUPTCY –trustee has beneficial interest in property of bankrupt estate – application for orders directing Registrar of Titles to cancel Certificate of Title and issue new one to trustee – where property to be sold to satisfy creditor claims – where bankrupt has not produced certificate of title despite trustee demands – where administration of bankrupt estate has been hindered - where trustee seeks cancellation of current certificate of title – whether discretion to be exercised – declaration and orders made – sale of property stayed for 60 days

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – consideration of whether Tribunal failed to consider applicant’s claim to fear harm due to heightened risk of civil unrest and conflict – finding that claim not expressly made and did not clearly arise on the material – consideration of whether Tribunal failed to identify place where applicant was to return – where it was unclear on material before Tribunal where applicant would return if returned to Ethiopia – materiality – jurisdictional error established – writ of certiorari issued – order for costs. 

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Have Enterprise Visa (subclass 790) – consideration of whether Authority failed to consider applicant’s claim, submissions or evidence – whether conclusions reached by the Authority were reasonably open – whether Authority erred in not seeking further information from applicant’s brother – consideration of whether Authority’s findings were unreasonable – no jurisdictional error established – application dismissed with costs. 

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection (subclass 785) visa – consideration of whether Authority misapplied ‘real chance’ test – consideration of whether Authority failed to consider whether risk of harm it had accepted satisfied complementary protection criterion – no jurisdictional error established – application dismissed with costs. 

FAIR WORK – Whether the Court has power to enforce an order of the Fair Work Commission – Costs sought 

FAIR WORK – Application for an adjournment due to medical reasons – Medical certificate provided – Where the medical certificate did not indicate they were unfit to attend Court – application refused 

MIGRATION- Application for an extension of time – Applicant did not pay prescribed fee within a reasonable period of time – Tribunal found they had no jurisdiction to review the matter – Application for judicial review. 

MIGRATION – Where primary visa applicant did not have a standard business sponsor at time of Tribunal decision – remnant costs issues following late withdrawal of applicants’ solicitor prior to final hearing necessitating adjournment 

INDUSTRIAL LAW – FAIR WORK – cafes and restaurants industry – application for relief in relation to admitted contraventions of the Fair Work Act 2009 (Cth) – where joint trustees failed to keep employment records and did not comply with a statutory compliance notice – where respondents produced or were involved in production of false or misleading documents during the course of a FWO investigation - consideration of relevant factors for fixing a pecuniary penalty and whether to make a compensation order – HELD that declaratory relief and pecuniary penalties be ordered – no compensation ordered where the relevant loss does not arise because of the subject contravention.  

PRACTICE AND PROCEDURE— application in a proceeding seeking to strike out pleadings in their entirety – where respondents identify a large number of objections to applicants’ statements of claim – where applicants invite Court to reconcile deficiencies in pleadings by having regard to affidavits filed in the proceeding – where objections upheld – where due to extent of objections the only practical course is to strike pleadings out in their entirety with leave to the applicants to replead 

INDUSTRIAL LAW – FAIR WORK – application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant seeking declaration of contravention of s 716(5) of the Fair Work Act 2009 (Cth) by reason of first respondent failing to comply with a compliance notice –second respondent alleged to be involved as an accessory to first respondent’s conduct – default judgment entered – declarations of contraventions and orders directed at compliance – matter listed for penalty hearing 

MIGRATION – Dismissal for non-appearance after previously adjournment when applicant presented himself to hospital on day of final hearing

MIGRATION – Application for review of a registrar’s decision – where application filed out of time – Temporary Graduate (Class VC) (Subclass 485) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant did not satisfy cl 485.212 of Sch 2 of the Migration Regulations 1994 (Cth) – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – whether applicant denied natural justice – whether delegate considered circumstances beyond applicant’s control – whether jurisdictional error – found no jurisdictional error.

HUMAN RIGHTS – disability – alleged discrimination of school student who is a minor – settlement of proceeding – approval of settlement by Court.  

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

INDUSTRIAL LAW – COSTS – Small claims proceeding in Fair Work Division – whether misunderstanding of party that proceedings were listed for final hearing instead of further directions was an unreasonable act for purposes of s 570 of the Fair Work Act – whether existence of legal advisors not on record, and without leave to represent party, can give rise to a party incurring costs for purposes of s 570 of the Fair Work Act especially in small claims proceeding. INDUSTRIAL LAW – Review of Registrar’s decision awarding costs to unrepresented litigant in small claims proceeding where leave neither sought nor granted for legal representation
 

INTELLECTUAL PROPERTY – moral rights – right of integrity of authorship provided for by s 195AI of the Copyright Act 1968 (Cth) (Copyright Act) – whether statements made about the contents of an author’s literary works (works) and about the author that prejudices the author’s honour or reputation constitute the doing of an act in relation to the works within the meaning of s 195AJ(b) of the Copyright Act and, for that reason, constitute the subjection of the works to derogatory treatment within the meaning of s 195AI(2) and, for that reason, constitute an infringement of the author’s right of integrity of authorship in respect of the works provided for by s 195AI – such statements do not constitute the doing of anything in relation to the works – s 195AI is concerned with the prevention of acts done to or with a work – the applicant does not have reasonable prospects of successfully prosecuting the proceeding based on the infringement of his right of integrity of authorship in respect of the works – proceeding dismissed. 

MIGRATION – persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – allegation that the Tribunal’s decision affected by jurisdictional error – no matter of principle. 

MIGRATION – protection visa – claim about inability to get documents for Tribunal hearing – concern about possible incorrect interpretation at Tribunal hearing – inability to obtain documents when no request to adjourn made does not constitute jurisdictional error – onus of demonstrating deficiencies in interpretation and connection with decision – no evidence of incorrect interpretation – jurisdictional error not established – application for review dismissed 

MIGRATION – application for an extension of time – review of Tribunal decision to refuse protection visa – moderate delay – lack of satisfactory explanation for delay – failure to particularise ground of review – no reasonably arguable grounds of jurisdictional error demonstrated – not necessary in the interests of justice to grant the extension of time – application for the extension of time refused  

MIGRATION – costs – cost sought by the Minister in an amount above scale – relevant principles – fixed costs order made 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority correctly identified information provided by applicant as new information – whether Authority erred in its consideration of whether new information provided by applicant met the requirements of s 473DD of the Migration Act 1958 (Cth) – whether Authority considered all the applicant’s claims for protection and their component integers – whether Authority made findings which were legally unreasonable – whether Authority acted unreasonably in failing to exercise discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – no jurisdictional error – application dismissed.   

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant the applicant a student visa – whether the Tribunal lacked jurisdiction – whether the Tribunal misinterpreted the relevant law – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed. 

INDUSTRIAL LAW – FAIR WORK – admitted contravention by CFMEU official who inappropriately threatened a site safety manager in an attempt to prevent exercise of workplace rights to report to the then building regulator – admitted contravention by CFMEU through its involvement – consideration of relevant factors – declaratory relief granted and pecuniary penalties ordered.    

MIGRATION – Administrative Appeals Tribunal – application for judicial review - Student (Class TU) (Subclass 500) visa – Whether the Tribunal misunderstood cl 500.212(a) – Whether the applicant’s satisfied the genuine temporary entrant criterion – application is dismissed –

MIGRATION – Administrative Appeals Tribunal - Student (Temporary) (Class TU) visa - whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – legal unreasonableness – temporal restriction – the application is dismissed.  

MIGRATION -  judicial review of refusal to grant applicants a Business Innovation and Investment visa – requirement for applicants to make a “designated investment” of $1.5m – where applicants invited to make investment – whether designated investment made when funds deposited – proper construction of visa criteria considered – whether additional steps imposed by department required to be met – where delegate misapplied criteria  - whether delegate should have made obvious inquiry about a critical fact – where delegate unreasonably failed to make inquiry – error found   

MIGRATION – Whether delegate incorrectly interpreted and applied Regulation 1.11A(2) in not accepting the applicant had evidenced beneficial ownership of an asset because supporting documentation not stamped or registered by an appropriate authority in China – where applicant proffered legal opinion from lawyer to the effect that there was neither a legal requirement nor an appropriate authority to stamp or register said documents in China

PRACTICE AND PROCEDURE – default judgment by reason of non-appearance – failure to file response or notice of address for service.  

FAIR WORK- small claim matter against employer- no involved person jurisdiction- need for evidence of service- judgment sum not supported- purported examination process – UCPR examination not picked up- arrest warrant request – not appropriate for enforcement of debts -Article 11 of the International Covenant on Civil and Political Rights- arrest warrant refused – judgment sum set aside – proceedings dismissed

MIGRATION- Application for an adjournment– application refused  

MIGRATION – Administrative Appeals Tribunal -  Temporary Activity visa – Tribunal found that there was no jurisdiction to review the application – judicial review of the Tribunal’s decision – application allowed

PRACTICE & PROCEDURE – Application for dismissal – non-appearance of the applicant. 

INDUSTRIAL LAW – application for the recovery of wages and other entitlements – whether applicant earned wages for the last seven weeks of his employment – whether first respondent employer was justified in summarily dismissing applicant from his employment for misconduct – whether first respondent employer liable to pay superannuation contribution – whether first respondent employer failed to pay accrued but untaken annual leave at time it terminated applicant’s employment – whether applicant engaged in misconduct thus relieving the first respondent from giving applicant two weeks’ notice or two weeks’ pay in lieu – declarations made and matter set down for directions to make further orders and to set the matter down for hearing on penalties. 

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to give genuine and realistic consideration to the applicant’s claim to face harm due to his former occupation as a police officer – whether the IAA failed to give genuine and realistic consideration to country information – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) – whether the Tribunal failed to address a claim – application dismissed

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – whether the Authority failed to consider a claim that clearly emerged on the materials before it – jurisdictional error established – writs issued.   

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal considered the claims and evidence before it in a manner that was open to it – whether the Tribunal afforded the applicant sufficient opportunity to present her case – allegation of bias – whether the Tribunal ignored or misunderstood the law – non-disclosure certificate – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the Tribunal’s decision was based upon the first applicant’s lack of current enrolment at the time of decision – where information regarding enrolment had been sought months previously with a response indicating that the first applicant’s then current enrolment was due to expire shortly before the Tribunal’s decision was ultimately made – where the Tribunal’s decision was made within weeks of the communicated expiry of the enrolment without seeking updated information – where the Tribunal gave reasons for not allowing the first applicant any further opportunity to provide information – where the Tribunal’s reasons did not expressly engage with the effect of its own timing but generically referred to the first applicant having been given a “fair opportunity to provide relevant information” – where that reasoning relied upon an erroneous statement of the applicants’ period of delay in providing information and did not engage with the reasons for the actual delay that had been provided – legal unreasonableness – application succeeds 

FAMILY LAW – subpoena – application to issue a subpoena or make an order directed to an entity previously subpoenaed in the proceedings – whether the subpoenaed entity had complied with the terms of an earlier subpoena and with court orders – whether terms of subpoena or order sought were sufficiently particularised – terms sought improper or alternatively a fishing - leave to issue subpoena declined  

BANKRUPTCY – interim application – where Trustee seeks an order under s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy) authorising the sale of vehicles in his possession – where insurance on vehicles has ceased and no alternative option to insure the vehicles has been identified – where orders necessary to preserve the value of assets of the bankrupt estate – where orders operate pre-emptively to prevent a breach of the Trustee’s obligations under statute and general law 

MIGRATION – Application for extension of time to bring proceeding – relevant considerations.   MIGRATION – Student (Temporary)(Class TU) Subclass 500 (Student) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.

MIGRATION — Application for extension of time — review of decision of Judicial Registrar — Temporary Skill Shortage (Class GK) (Subclass 482) visa — where application for review of decision was filed 12 days out of time — where grounds of review have no reasonable prospects of success — application dismissed with costs. 

MIGRATION – Application for a protection visa – Refusal – Review of AAT (“Tribunal”) decision 

FAIR WORK – non-compliance with s 716 notice – duties compliance – payment of amount outstanding - penalty  

MIGRATION – protection visa – where Immigration Assessment Authority affirmed delegate’s decision – application for extension of time to seek judicial review – where application made 566 days outside time limit – consideration of relevant principles – where applicant identified contact details in protection visa application – whether applicant invited to delegate interview – where correct contact details overlooked or not used – whether explanation for delay is reasonable – whether substantive ground of judicial review arguable – extension of time granted 

MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether there was a denial of procedural fairness, the decision was affected by apprehended bias or misapplication of the law – no error of jurisdiction established – application dismissed. 

MIGRATION– where it was claimed that the Secretary of the Department had failed to provide all relevant information to the Authority – where such claim had not been made out – where it was claimed that the applicants were stateless – where such claim had not been made out – no jurisdictional error established – application dismissed.