Patrick Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 16

ADMINISTRATIVE LAW – whether theFederal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW)conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s7(h) of the Residential Tenancies Act 2010(NSW) – whether errors in primary judge’s exercise of power under s 85 of theResidential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

AWP17 v Department of Immigration and Border Protection

6 St James Hall's public law barrister Madeleine Bridgett, led by James Emmett, 12 Wentworth Selbourne Chambers, appeared pro bono for the Applicant refugee who is currently held in an offshore processing centre, instructed by the National Justice Project. The urgent interlocutory injunction was heard by the Federal Court of Australia's Nicholas J on 2 March 2017. The injunction, which was granted, sought to, inter alia, prevent the Commonwealth from withdrawing, or ceasing, to support and provide services to the Applicant.

http://www.sbs.com.au/news/article/2017/03/02/immigration-department-blocked-returning-sick-asylum-seeker-manus-island

http://www.skynews.com.au/news/national/2017/03/02/refugee-with-dwarfism-to-be-housed--court.html

Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44

OCCUPATIONAL REGULATION – Tattoo Parlours Industry – Refusal of operator licence – following adverse security determination by Commissioner of Police on grounds of fitness and public interest – Affirmed by Tribunal only on the ground that grant of the licence would not be in the public interest – relationship of the two grounds - meaning to be given to the public interest – no evidence – adequacy of reasons – illogicality – Appeal dismissed.

Dr Christos Mantziaris appeared for the Commissioner of Police.

Reasons for the decision can be found here.

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.. 

Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25

In the NSW Civil and Administrative Tribunal Appeal Panel  -

COSTS – whether amount claimed or in dispute in proceedings more than $30,000 – whether there are any “special circumstances” to warrant an award of costs – amount claimed or in dispute not more than $30,000 – no special circumstances – costs not awarded

Michelle McMahon appeared for Tenants’ Union New South Wales.

Jimenez v R [2017] NSWCCA 1

From the New South Wales Court of Criminal Appeal:

CRIMINAL LAW -  Leave to appeal against conviction – referral to Court of Criminal Appeal – possession of child pornography – Federal and State jurisdiction – error as to relevant law – conviction quashed.

Sophie Callan appeared with Madeleine Bridgett for the Crown.

Reasons for the decision can be found here.

Department of Family & Community Services & Arthur [2017] FamCA 204 (24 January 2017)

From the Family Court of Australia:

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the substantive proceedings have been heard and orders made for the return of the child to New Zealand – Where the proceedings were adjourned in relation to the conditions of the child’s return – Where some conditions are agreed between the parties – Where there are financial and other difficulties in relation to a practicable and enforceable order for return – Orders made to give effect to the return order after conditions have been met including the provision of financial support by the father to the mother – Orders made to stay the return order until the mother’s appeal is finalised.

Madeleine Bridgett appeared for the respondent.

Department of Family and Community Services & Arthur [2016] FamCA 1119

From the Family Court of Australia:

FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of a five year old child to New Zealand – Dispute over her country of habitual residence – Dispute over father having rights of custody – Dispute over father exercising rights of custody – Where the child was wrongfully removed from New Zealand by the mother – Where the father did not consent to the mother removing the child –– Where grave risk of physical or psychological harm or an intolerable situation is not established – Where it is not established that the return would be against the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Application for return granted – Adjournment for any conditions of return.

Madeleine Bridgett appeared for the respondent.

R v Fang (No. 2) [2016] NSWSC 1784

CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence

Crimes Act 1900 - Criminal Procedure Act 1986 - Evidence Act 1995 - Mental Health (Forensic Provisions) Act 1990

Madeleine Bridgett appeared as amicus curiae for the witness.

Reasons for the decision can be found here.

Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255

ADMINISTRATIVE LAW – Appeal - Crimes (Criminal Organisations Control) Act 2012 (NSW) -
Criminal Records Act 1991 (NSW) - Tattoo Parlours Act 2012 (NSW).

Dr Christos Mantziaris appeared for the Commissioner of Police.

Reasons for the decision can be found here.

Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328

CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.

Noel Hutley SC and Tim Castle for the Appellant.

Reasons for the judgement can be found here.

Turner v Justice & Forensic Mental Health Network [2016] NSWCATAD 265

ADMINISTRATIVE LAW – access to government information – access application – reasonableness of searches - excluded information -  Government Information (Public Access) Act 2009.

Lisa Doust appeared for the Justice & Forensic Mental Health Network.

The Sharemarket College Pty Ltd & 2 Ors v ASIC [2016] AATA

FINANCIAL SERVICES – application to stay decision of ASIC – decision cancelled first applicant’s financial services license – applicant also operates Registered Training Organisation licensed by ASQA - utility of granting stay - prospects of success – public interest – consequences on application for review.

FINANCIAL SERVICES – application to stay decision of ASIC – banning orders against second and third applicants who were responsible managers of financial service licensee – utility of granting stay - prospects of success – public interest – consequences on application for review.

Dominique Hogan-Doran SC and Steven Cominos appeared for the applicants.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd [2016] FCAFC

INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed

Tim D. Castle appeared for the respondent.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd and Others [2016] FCAFC 150

INSURANCE — Contribution — Claim for contribution between insurers — Where insured covered by one policy in terms and one by operation of s 54 of the Insurance Contracts Act 1984 (Cth) — Whether suspension of cover an inherent limitation on claims — Whether s 54 operates only for benefit of insured — Insurance Contracts Act 1984 (Cth), s 54.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2016] NSWSC 1569

PROPERTY – earlier order that plaintiffs may only commence proceedings seeking relief concerning 2006 mortgagee sale with leave – whether leave should be granted – whether leave should be subject to terms that plaintiffs pay all outstanding costs orders and provide security for the costs of proposed proceedings.

Richard Parsons and Madeleine Bridgett appeared for the defendant.

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

INDUSTRIAL LAW – quantification of penalties – moral responsibility of a number of respondents – the need for both specific and general deterrence  

INDUSTRIAL LAW – detailed co-operation in respect to facts – admission of liability – withholding of any details as to financial circumstances

INDUSTRIAL LAW – an order requiring an audit to be undertaken

Michael Seck appeared for Office of the Fair Work Ombudsman

Jausnik v Nominal Defendant (No 5) [2016] ACTSC 306

TORTS – Negligence – Police involved in pursuit of fleeing vehicle across NSW/ACT border – Failure to comply with police protocols for safe driving and cross-border pursuits – Passenger in police vehicle suffering mental harm arising from attending scene of accident arising from police pursuit – Liability of State of New South Wales for failure to provide training in use of radios and cross-border pursuit protocols – Liability of police driver for injury to passenger 

CHOICE OF LAW – Statutory contribution between tortfeasors – Accident in the Territory following police pursuit from New South Wales – Claim for contribution by ACT Nominal Defendant against New South Wales police office and State of New South Wales – Characterisation of apportionment legislation – Applicable choice of law rule. 

TORTS – Causation – Police pursuit of driver cross border – Pursued driver involved in fatal accident – Whether pursued driver would have avoided accident if pursuit terminated earlier – Expert evidence based on aggregate statistics – Whether likely conduct of pursued driver proved on balance of probabilities – Causation not established

TORTS – Statutory contribution – Nominal defendant liable for conduct of pursued driver who caused an accident – State of New South Wales and police officer also negligent – Contingent assessment of appropriate contribution

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

East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.

Lisa Doust appeared for the appellants.

Reasons for the decision can be found here.