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.
INJUNCTION - decision of Road Safety and Remuneration Tribunal - introduction of new minimum pay rates for for long-distance drivers and those involved in the distribution of goods destined for sale or hire by supermarket chains.
Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP in these proceedings concerning the decision of the Road Safety and Remuneration Tribunal.
PRACTICE AND PROCEDURE – summons to produce documents – whether legitimate forensic purpose for summonsing handwritten notes made by a member of the Vocational Training Review Panel during a hearing of a complaint – nature of an external appeal.
LEGISLATION: Apprenticeship and Traineeship Act 2001 (NSW), ss 39, 44 , 46, 47, 51(1)(c), 53, 55; Civil and Administrative Tribunal Act 2013 (NSW), ss 29(2)(a), 38, 48, 79.
Lisa Doust appeared for the applicants.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – decision of Secretary under Costs in Criminal Proceedings Act 1967 – deferral under s 4(5) thereof to see what claimant “may receive” – no relevant criteria for deferral – decision quashed.
Dr Christos Mantziaris appeared for the Attorney General for the State of New South Wales.
From the Federal Court of Australia:
PRACTICE AND PROCEDURE - application to stay execution of judgments registered under the Trans-Tasman Proceedings Act 2010 (Cth) – appeal proceedings in New Zealand and applications to set aside the registered judgments – relevant considerations in determining whether or not to grant a stay – relevance of first applicant’s conduct in previous proceedings in New Zealand and critical observations of that conduct by various New Zealand Courts – relevance of comity – stay granted on appropriate conditions.
Dr Christopher Ward SC appeared for the respondent.
APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event.
COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise.
Robert Angyal SC appeared for the appellant.
INQUESTS - evidence - public interest immunity - national security issues.
Michael Rennie appears for Commissioner of NSW Police, instructed by NSW Crown Solicitor's Office.
CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act.
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease.
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave.
Robert Angyal SC appeared for the successful appellant.
DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions.
Richard Parsons appeared for the defendant.
ADMINISTRATIVE LAW - Orders sought under s 37AF of the Federal Court of Australia Act 1976 (Cth) to prevent prejudice to the proper administration of justice - suppression and non-publication orders - judicial comity
Dr Chris Ward SC appeared for the respondent
ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success
David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.
MIGRATION - deportation order - refusal to grant Protection (Class XA) visa
Dr Stephen Tully appeared for the Applicant.
PRACTICE AND PROCEDURE — applications for interlocutory injunction and transfer of proceedings — restraint of trade — parties contracted to submit to the exclusive jurisdiction of the courts of Victoria — proceedings could have been commenced in Victoria — in the interests of justice to transfer proceedings to the Supreme Court of Victoria pursuant to s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW) — claim for interlocutory injunction not heard or determined.
Michael Seck appeared for the defendant.
CONTRACT – Agreement – Subject to contract – Whether parties intended to be immediately bound - No written agreement signed as contemplated – Held, no contract.
RESTITUTION – Moneys had and received – Failure of consideration – Change of position defence – Whether inequitable to require recipient to pay.
Richard Parsons appeared for the successful plaintiff.
ADMINISTRATIVE LAW - Tattoo Parlours Act 2012 (NSW) - Applicant for operator's license found to be "fit and proper" person - licence refused for "public interest" grounds.
Dr Christos Mantziaris appeared for Commissioner for Fair Trading & Commissioner of Police.
Reasons for the decision can be found here.
TRADE AND COMMERCE – contract to purchase business – vendors made misrepresentation to the plaintiff concerning the turnover of the business – whether plaintiff relied upon the representation in entering into the contract to purchase the business – held plaintiff did not rely upon misrepresentation.
TRADE AND COMMERCE – vendors had benefit of restraints of trade deed with prior vendor that prevented prior vendor from competing with vendors – whether prior vendor had made misrepresentation to the plaintiff concerning intention to compete with the plaintiff – whether prior vendor and vendors had made misrepresentations to the plaintiff concerning the subsistence of the deed and the plaintiff’s entitlement to the benefit of the deed – held representations not made – whether prior vendor and vendors had made representations to the plaintiff by silence by failing to inform the plaintiff that the vendors had released the prior vendor’s obligations under the deed – held representations not made.
INTELLECTUAL PROPERTY – passing off – whether business had necessary goodwill or commercial reputation – goodwill or commercial reputation established – whether ordinary customers would be deceived by conduct of relevant defendants – conduct of relevant defendants found to be passing off.
RESTITUTION – plaintiff claimed order setting aside purchase of business on ground that plaintiff entered into the contract because of misleading and deceptive conduct by vendors – plaintiff claimed order for rescission under s 243 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – plaintiff delayed in claiming order – plaintiff continued to operate business – plaintiff did not elect to rescind or offer to return business to vendors – plaintiff would not have been entitled in any event to an order setting aside the purchase as restoration of the status quo had become impossible because of plaintiff’s actions.
DAMAGES – misleading or deceptive conduct – plaintiff not entitled to damages as claims dismissed – consideration of plaintiff’s claim for damages equal to the purchase price paid by the plaintiff for the business – plaintiff chose not to tender evidence of the difference between the purchase price and the market value of the business – applicable principles considered – plaintiff would not have been entitled to damages claimed in any event because the evidence established that the business had a value at the date of purchase and the plaintiff did not establish that it lost the benefit of the entirety of the purchase price.
DAMAGES – passing off – Exemplary, punitive and aggravated damages – plaintiff claimed damages instead of an account of profits – plaintiff did not prove it suffered any loss caused by the passing off – plaintiff not entitled to compensatory damages – plaintiff claimed exemplary damages for tort of passing off – applicable principles considered – plaintiff not entitled to exemplary damages.
David Jay appeared for the successful defendants.
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.
COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – collateral attack of administrative act - whether in a general protections court application made pursuant to s.370 of the Fair Work Act 2009 (Cth) (FW Act) the Federal Circuit Court of Australia has jurisdiction to determine whether a certificate issued by the Fair Work Commission (FWC) purportedly pursuant to s.368(3)(a) of the FW Act is valid.
JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC.
INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation.
Michael Seck appeared for the successful respondent.
EMPLOYMENT LAW - urgent interlocutory relief to address conduct of members of crew of MV “CSL Melbourne” refusing to leave that vessel - employees ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle.
LEGISLATION - Coastal Trading (Revitalising Australian Shipping) Act 2012(Cth), Fair Work Act 2009 (Cth), ss 19, 417, 418, 421, 421(2)(b), Navigation Act 2012 (Cth), s 122, Workplace Relations Act 1996 (Cth), V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne, cl 3.2.4
Michael Seck appeared for the successful applicant.
ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons.
LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998.
Michelle McMahon appeared for the successful respondent.
Liability limited by a scheme approved under Professional Standards Legislation.