Dr Stephen Tully

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

From the Federal Court of Australia:

MIGRATION – application for judicial review of a decision of the Minister to refuse a visa under s 501(1) of the Migration Act 1958 (Cth) – whether Minister misconstrued or misapplied s 501(6)(d)(i) of the Act – whether Minister required to give consideration to a psychologist’s report

Dr Stephen Tully appeared pro bono for the applicant.

LFDB v SM [2017] FCAFC 178

From the Full Federal Court of Australia:

PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia

Dr Christopher Ward SC and Dr Stephen Tully successfully appeared for the respondent.

Hampton & Heath and Ors [2017] FamCA 132 (8 March 2017)

From the Family Court of Australia:

FAMILY LAW – CHILDREN – Best Interests of the children – Where there is a risk of harm to the children in the care of each parent – Where there are allegations of family violence – Where the first respondent father perpetrated family violence – Where there are concerns regarding the mental health of the first respondent father – Where there are concerns regarding the drug use of the parties – Where the second respondent father has been convicted of assaulting one of the children – Where each of the parties has a criminal record – Where the mother was abused as a child – Where the mother identifies as Aboriginal – Where there are concerns about the mother’s ability to cope with four children – Where the youngest child lives with the paternal uncle – Where the sibling relationships are significant – Where there are concerns about the capacity of each parent to meet the needs of the children – Where there is an unacceptable risk of harm to the children in the care of each parent – Where the children should have a connection to their Aboriginal heritage – Where the Department of Family and Community Services is to have sole parental responsibility for the children – Where the children spend time with the mother – Where the child spends time with the second respondent father – Where the children spend time with the first respondent father.

Dr Stephen Tully appeared for the First Respondent.

LFDB v SM (No 3) [2017] FCA 80

PRIVATE INTERNATIONAL LAW – application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth) (the Act) to set aside the registration of two judgments of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgments would be contrary to public policy in Australia as involving a gross denial of procedural fairness – whether the judgments were given in a proceeding in rem – whether the subject of the proceedings is moveable property not situated in New Zealand – whether one of the judgments is not a “registrable judgment” because if contravened it would make LFDB liable to conviction for contempt in New Zealand. 

STATUTORY INTERPRETATION – construction of s 72(1) of the Act – whether judgment contrary to public policy – whether the judgments were given in a proceeding in rem the subject matter of which was moveable property.

Dr Ward SC and Dr Tully successfully resisted an application to refuse recognition of a foreign judgment under the Trans-Tasman Proceedings Act on public policy grounds.  The decision of the Federal Court discussed the circumstances in which recognition may be refused on grounds of public policy as well as the nature of judgments in rem.. 

AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195

MIGRATION ― appeal from decision of the Federal Circuit Court ― whether primary judge erred in failing to find that Refugee Review Tribunal did not comply with s 425(1) of theMigration Act 1958 (Cth) ― whether Tribunal gave appellant opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review

ADMINISTRATIVE LAW ― illogicality or irrationality ― whether primary judge erred in failing to find that Tribunal’s decision illogical or irrational

ADMINISTRATIVE LAW ― unreasonableness ― whether primary judge gave inadequate consideration to whether Tribunal’s decision legally unreasonable

Stephen Tully appeared for the appellant

AGU16 v Minister for Immigration & Anor [2016] FCCA 1647

MIGRATION – whether the Tribunal misconstrued the requirements of a ministerial direction – whether the Tribunal failed to take relevant considerations into account – real chance test – well-founded fear test – whether the Tribunal failed to apply the correct legal test – whether the Tribunal misconstrued or misapplied case law– whether the Tribunal failed to comply with s.425 of the Migration Act 1954 – no jurisdictional error identified – application dismissed.

AMZ15 v Minister for Immigration & Anor [2016] FCCA 473

MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Sri Lanka on various bases – applicant’s claims of harm not believed – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth), made an irrational or illogical decision, made findings without probative evidence or made an unreasonable decision considered – no jurisdictional error.

Dr Stephen Tully appeared for the applicant.

 

CGG15 v Minister for Immigration & Anor [2016] FCCA 219

MIGRATION – Subclass 050 bridging visa – cancellation of bridging visa – applicant charged with serious criminal offences – Ministerial Direction No.63 – whether the Tribunal failed to consider or comply with Direction – whether Tribunal’s decision was based on a finding of fact for which there was no evidence – Tribunal failed to consider all of the circumstances in which the ground for cancellation arose – jurisdictional error – writs issued.

Dr Stephen Tully appeared for the successful applicant.

Whitley v Director General, NSW Fair Trading [2015] NSWCATOD 155

ADMINISTRATIVE LAW - Fit and proper person – contractor licence - alleged improper conduct – whether allegations made out on evidence – nature of allegations – circumstances of allegations- fit and proper in absence of breach

Dr Stephen Tully appeared for the successful applicant

Owners Corporation SP 78422 v Ware Building Pty Ltd [2015] NSWSC 1384

BUILDING DISPUTE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the case as currently pleaded – where a variation argument is in any event already provided for – consequence that it is not in the interests of justice to allow defendant the leave it seeks

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances

SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased

SUCCESSION – family provision and maintenance – principles upon which relief granted for son – deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased

Dr Chris Ward appeared for the successful plaintiff