DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92

PRIVATE INTERNATIONAL LAW – foreign State immunity – whether proceeding “concerns” a commercial transaction or like activity – where separate entity responsible for management of commercial airport – where separate entity entered agreement with private entity for operation and management of commercial airport – where appellants present at commercial airport because of commercial transactions with airline – where relevant conduct of separate entity was alleged participation in, or failure to prevent, police operation – where alleged participation in, or failure to prevent, police operation distinct from surrounding commercial activities – proceeding does not “concern” a commercial transaction or like activity

PRIVATE INTERNATIONAL LAW – foreign State immunity – whether operation and management of a commercial airport is a “commercial transaction … or like activity” – where operation and management of airport delegated to private entity by agreement – relevance of purpose to characterisation of transaction or activity

PRACTICE AND PROCEDURE – application for leave to appeal from single judge – whether leave to appeal should be granted – where prejudice to applicants if leave not granted – where appeal raises important question about operation of law – where findings of primary judge ultimately held correct – leave to appeal granted – appeal dismissed

Dr Christopher Ward SC, Richard Reynolds and Stephanie Erian appeared for applicant.

Reasons for the judgment can be found here.

DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91

AVIATION – carriers’ liability – where applicants had boarded flight at Doha airport bound for Sydney – where aircraft had been waiting at gate for hours – where applicants allege that all women passengers were directed to leave the aircraft – where four applicants allege that they endured bodily inspections and three applicants allege invasive examinations by a “nurse” in an ambulance on airport tarmac – where applicants subsequently returned to aircraft which eventually departed Doha and reached Sydney – whether claim can be brought against carrier under Art 17 of the Montreal Convention – temporal scope of Art 17 – meaning of “in the course of any of the operations of embarking or disembarking”

AVIATION – scope of exclusivity principle in Art 29 of the Montreal Convention – whether, if accident not held to be “in the course of any of the operations of embarking or disembarking”, applicants are precluded from bringing common law claims in negligence against carrier – whether temporal scope of exclusivity principle is coextensive with Art 17 – whether “international carriage by air” is broader than Art 17

NEGLIGENCE – where applicants assert alternative case in negligence against carrier – where “second limb” of negligence case is that the carrier failed to take steps to protect the applicants from harm once directed off the aircraft – where primary judge held that “second limb” of negligence claim had no reasonable prospects of success – whether any basis on which duty of care could extend to the risk of harm independently of embarking or disembarking the aircraft – whether applicants have a more than fanciful prospect of being able to plead facts that disclose cause of action TORTS – where applicants assert claims in negligence, assault, false imprisonment and battery against airport

Dr Christopher Ward SC, Richard Reynolds and Stephanie Erian appeared for applicant.

Reasons for the judgment can be found here.

PSA v Commissioner of Police [2025] NSWSC 624

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Act 1996 (NSW), s 210 — whether applicant required to allege that a protected matter is the cause of any detrimental action — whether Commissioner impermissibly reversed onus — where no evidence given by particular police officer in first defendant’s case — where Commissioner found matters involving that police officer not a substantive and operative cause of identified detrimental action — no jurisdictional error

ADMINISTRATIVE LAW — judicial review — extension of time to file application — where applicant pursued appeal rights to Full Bench of Industrial Relations Commission — where grounds of review overlapped with argument advanced to Full Bench — where no suggestion first defendant suffered prejudice — where issues fully argued — extension granted

Martin Watts appeared for the Commissioner of Police, as he did at first instance and on appeal before the NSW Industrial Relations Commission, instructed by Emily Baxter at Kingston Reid.

A link to the Supreme Court’s decision can be found here.

GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718

In the recent decision of GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718, the Federal Circuit and Family Court of Australia (Division 2) held that the Court had jurisdiction to determine a claim for damages for unlawful imprisonment.

In this proceeding, the applicant, a citizen of Iraq, sought a writ of habeas corpus and damages for unlawful imprisonment, following the landmark decision of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. The respondents, the Minister for Immigration and Multicultural Affairs and the Secretary of the Department of Home Affairs, argued that the Court had no jurisdiction to deal with the damages issue, and asked that that question be determined before any further steps were taken in the proceeding. The Court held that it did have jurisdiction and that the “same result would have applied even if the habeas corpus application had been dismissed” which it was not.  

The respondents have sought leave to appeal the decision.  

Madeleine Bridgett represented the applicant led by Quintin Rares.

ASCF Funding Solutions Pty Ltd v SL Property Maintenance Pty Ltd [2025] NSWSC 262

CONTRACTS – Construction and interpretation – express terms – implied terms – whether the express terms of the letter of offer require the payment of the fees – whether there is an implied term in the letter of offer that has the effect that the fees cannot be recovered – whether the fees are penalties and unrecoverable – where no claimed fees are payable under the express terms of the letter of offer.

Michael Collins appeared for the defendant.

Reasons for the judgement can be found here.

J&J Richards Super Pty Ltd ATF The J&J Richards Superannuation Fund v Nielsen [2024] FCA 1472

INSURANCE – third party claims by investors pursuant to the Civil Liability (Third Party Claims against Insurers) Act 2017 (NSW) against insurer that provided directors and officers liability insurance to a now insolvent company – proceeding brought by applicant on its own behalf and on behalf of group members – where partial settlement of proceeding approved and applicant granted leave to discontinue proceeding against corporate defendants, but individual directors to remain as respondents in proceeding – where directors excused from participating in proceeding and each filed submitting appearances – where principal claim remaining to be determined is applicant’s third party claim against insurer for indemnity under policy

CORPORATIONS – where necessary to address claims advanced against companies and directors to establish foundation for third party claims brought against insurer – where companies operated registered and unregistered managed investment schemes – where companies made improvident and inadequately secured loans to related entities, directors and financial advisors – where applicant and group members purchased units in schemes – where investments in schemes promoted in information memorandum and product disclosure statements – whether directors involved in contravention of s 601FC by companies and contravened s 601FD(1)(b) and s 601FD(1)(c) of the Corporations Act 2001 (Cth) (Corporations Act) by not acting with care and diligence and failing to act in best interests of members of schemes – whether information memorandum and product disclosure statements contained misleading and deceptive representations – whether applicant relied on misleading and deceptive representations – whether product disclosure statements were defective within the meaning of s 1022A of the Corporations Act – whether directors were involved in contraventions – contraventions established – where directors involved in contraventions – whether applicant and group members entitled to damages against directors –where applicant and group members entitled to damages against directors in an aggregate amount for s 601FC(5), 601FD(1)(b) and s 601FD(1)(c) contraventions – predicate liability established – common questions answered

INSURANCE – defences – non-disclosure – whether insurer entitled to reduce liability for claims under policy to nil – where satisfied relevant matters not disclosed – where satisfied that director who completed proposal form knew of relevance of matters not disclosed and such knowledge attributed to the company – where both limbs of s 21(1) of the Insurance Contracts Act 1984 (Cth) (Insurance Contracts Act) engaged – where satisfied insurer would not have accepted risk if it were made aware of matters not disclosed – whether insurer waived duty of disclosure pursuant to s 21(2)(d) or s 21(3) of the Insurance Contracts Act – where question in proposal form as to whether applicant was aware of facts or circumstances which might afford valid grounds for any future investigations, inquiries, regulatory proceedings or other claims which may be covered by the policy was answered in the affirmative – where insurer did not seek particulars of affirmative answer – whether there was a fair presentation of risk to the insurer or answers were obviously incomplete or irrelevant within the meaning of s 21(3) of the Insurance Contracts Act – where satisfied duty of disclosure waived by the insurer 

INSURANCE – whether insurer entitled to rely on professional services exclusion in policy – whether impugned conduct constitutes the provision of third party professional services – consideration of Beach J’s decision in Murray Goulburn Co-Operative Co Ltd v AIG Australia Ltd (2021) 389 ALR 453; [2021] FCA 288 – impugned conduct does not constitute professional services falling within professional services exclusion –whether insurer is entitled to benefit of conditional release granted to directors under settlement orders made pursuant to s 7 of the Civil Liability (Third Party Claims against Insurers) Act 2017 (NSW) – where settlement orders do not preclude applicant from claiming indemnity against insurer

Michael Collins appeared for the applicant, led by D Lloyd SC and R Pietriche.

Reasons for the judgment can be found here.

Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim [2024] NSWSC 1399

CONSUMER LAW — misleading or deceptive conduct — representations as to future matters — silence or non-disclosure — alleged representations by first defendant as to ongoing operation of the first plaintiff’s business, lease of business premises, value of business, establishment of competing business, and terms of deed of settlement — insufficient evidence that the pleaded representations were made — insufficient evidence of and evidence contraindicating reliance by plaintiffs on alleged representations — HELD — claims of misleading or deceptive conduct against first defendant dismissed — deed of settlement applies in accordance with its terms

CORPORATIONS — directors and officers — whether first defendant was an officer of the first plaintiff — s 9AD(1)(b) Corporations Act — where first defendant participated in some decisions affecting corporation’s business — insufficient to make him an officer of the company — directors’ duties — alleged breach by third defendant of statutory and fiduciary duties — duty not to use information improperly — duty not to use position as director improperly — duty of care and diligence — duty to act in good faith in best interests of company — alleged breaches involving failure to exercise lease option, establishing competing business, and taking staff and business — insufficient evidence of pleaded conduct by third defendant said to constitute breaches — HELD — first defendant not an officer of first plaintiff; unnecessary to determine associated claims against him — claim against third defendant dismissed

EQUITY — breach of confidence — first defendant’s access to first plaintiff’s confidential business and financial information — alleged misuse by first defendant — plaintiffs’ failure to identify confidential information with precision — failure to particularise misuse or resulting loss to plaintiffs — HELD — breach of confidentiality claim against first defendant dismissed.

Michael Collins appeared for the first, second seventh and eighth defendants, led by Miles Condon SC.

The reasons for the decision can be found here.

In the matter of Redback Engineering & Sales Pty Ltd [2024] NSWSC 1108

CORPORATIONS — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 453Q to advance a restructuring — Whether it is in the interests of the company's creditors for the company to continue under restructuring rather than be wound up.

Michael Collins represented the Plaintiff.

Reasons for the judgement can be found here.

DST18 v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2024] FCAFC 104

MIGRATION – application for leave to appeal from a decision answering “no” to a separate question – where Minister referred a fast track reviewable decision to the Immigration Assessment Authority – where Authority’s decision quashed and remitted to the Authority – where Authority made a second decision – where new country information had come into the possession of the Secretary after the original referral to the Authority – whether the Minister’s duty in ss 473CA of the Migration Act 1958 (Cth) to refer a fast track reviewable decision to the Authority must be re-performed after a decision of the Authority is quashed – whether the Secretary’s duty in s 473CB to give review material to the Authority must be re-performed after a decision of the Authority is quashed – meaning of ‘at the time of the referral’ in s 473CB(1)(c) of the Act.

Richard Reynolds successfully represented the Appellant.

Reasons for the judgement can be found here.

Cao v ISPT Pty Ltd [2024] NSWCA 188

CONTRACTS – Construction of a commercial lease – Whether COVID public health restrictions prevented tenant from “opening” the premises for business – Paramount clause to be construed before paramountcy can take effect – Not construed to require illegal activity.

CONTRACTS – Termination – Frustration – Impossibility of performance – Frustration does not apply as COVID public health orders as supervening event was risk for which tenant had assumed responsibility under the lease – Relevant orders did not require radical or fundamental change in what contracted for in any event.

Jennifer Mee appeared for the Respondents.

Reasons for judgment can be found here.

Veale v Coleman [2024] FCAFC 83

BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice issued under s 41(1) of the Bankruptcy Act 1966 (Cth) – foreign currency judgment debt – where bankruptcy notice includes incorrect date for conversion of foreign currency judgment debt to Australian dollars – where bankruptcy notice includes Reserve Bank of Australia rate of currency conversion rounded to two decimal places – where rate of currency conversion is rounded down rather than rounded up – whether there is a defect or irregularity in the bankruptcy notice – whether any defect or irregularity is merely formal – where defect was merely formal – appeal allowed.

Jennifer Mee appeared for the Appellant.

Reasons for judgment can be found here.

Qantas Airways Limited v Australian and International Pilots Association (No 2) [2024] FCA 756

INDUSTRIAL LAW – s 50 Fair Work Act 2009 (Cth) – whether contravention of Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (EBA10)(LHEA10) – whether agreement to direct allocation of junior pilots to A380 aircraft was unreasonably withheld by the respondent – whether the applicant/cross-respondent contravened cl 19.1.2 of LHEA10 – claim and cross-claim dismissed.

CONTRACT – general contractual principles – term that a party is not to unreasonably withhold its agreement – relevant principles.

Renae Kumar was led by Ian Neil SC, both appearing for the respondent.

Reasons for judgment can be found here.

Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686

CORPORATIONS – employee alleging her employer (a company) purported to dismiss her from her employment – employee alleging the purported dismissal was not legally effective – whether a resolution of the Board of a company for the termination of the company’s Chief Executive Officer was made in compliance with the company’s Constitution – consequences of non-compliance – whether s 1322(2) of the Corporation Act 2001 (Cth) operated to cure a procedural irregularity – whether substantial injustice would result if the procedural irregularity were so cured

INDUSTRIAL LAW – alleged contraventions of s 340 of the Fair Work Act 2009 (Cth) – employee alleging her employer took five adverse actions because she exercised or threatened to exercise workplace rights – employer having the onus to prove that the adverse actions were not taken because the employee had exercised or proposed to exercise workplace rights – where members of a Board of directors gave evidence – whether the evidence was sufficient to prove that persons other than the witnesses materially participated or brought about the decisions – where some witness testimony about the reasons for the taking adverse actions could not be accepted in light of objective facts – relevance of temporal coincidence between employee’s exercise of workplace rights and employer’s adverse actions – whether the employer’s evidence established that some directors of a Board had not acted on a report the existence of which may have resulted from the acts or omissions of a person actuated by a prohibited reason – where presumption in s 361 of the Fair Work Act applied by reason of deficiencies in the case presented by the employer

Renae Kumar was led by Mr M Harding SC, both appearing for the Applicant.

The reasons for the decision can be found here.

Veale v Coleman [2024] FCAFC 83

BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice issued under s 41(1) of the Bankruptcy Act 1966 (Cth) – foreign currency judgment debt – where bankruptcy notice includes incorrect date for conversion of foreign currency judgment debt to Australian dollars – where bankruptcy notice includes Reserve Bank of Australia rate of currency conversion rounded to two decimal places – where rate of currency conversion is rounded down rather than rounded up – whether there is a defect or irregularity in the bankruptcy notice – whether any defect or irregularity is merely formal – where defect was merely formal – appeal allowed

Jennifer Mee appeared for the appellant.

Reasons for the decision can be found here.

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) & Ors

INDUSTRIAL LAW – where respondents found to have contravened the Fair Work Act 2009 (Cth) in multiple respects, what orders should be made – where employees found to have been underpaid but received some payments under a deed of company arrangement before proceeding commenced, whether an order should be made that the amount of underpayments in excess of payments made under the deed be paid to the applicant for payment out to the employees – whether compensation should be awarded for non-economic loss – where respondents not previously found to have contravened the Act but contravening conduct extensive, serious and deliberate; occurred over a period of four years; and no contrition exhibited – civil double jeopardy – where overlap in the conduct constituting multiple contravention

Michael Seck and Bronwyn Byrnes appeared for the Applicant.

Reasons for the decision can be found here.

Atidote Pty Ltd t/as Harcourts, The Property People Sydney v Najjar [2024] NSWSC 206

JUDGMENTS AND ORDERS - enforcement – garnishee order – attachment of debts – Civil Procedure Act 2005, s 117 the plaintiff, a managing agent holds funds collected from the tenants of the second defendant, the owner of units in a residential and commercial building, on trust for the second defendant pursuant to a management agency agreement – the owners corporation of the strata plan of the building, the third defendant, obtains a money judgment in the District Court against the second defendant and serves a garnishee notice on the second defendant seeking to attach debts owed by the plaintiff to the second defendant pursuant to the management agreement – the plaintiff pays funds in its possession at the time of service of the garnishee order and thereafter to the third defendant – the second defendant defaults to its mortgagee and the mortgagee appoints a receiver, the first defendant – the receiver contends that the plaintiff wrongly paid monies under the garnishee order to the third defendant after the date of service of the garnishee order – whether the third defendant is entitled to retain the monies so received or whether those monies should be repaid to the plaintiff – construction of the expression “due and payable”.

Michael Collins appeared for the first and second defendants.

Reasons for the decision can be found here.

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded fear of persecution in Myanmar – Where plaintiff's bridging visa cancelled following criminal conviction – Where following release from criminal custody plaintiff taken into immigration detention under s 189 of Migration Act 1958 (Cth) ("Act") – Where plaintiff's application for protection visa refused and finally determined – Where ss 198(1) and 198(6) of Act imposed duty upon officers of Department administering Act to remove plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act required plaintiff to be kept in immigration detention until removed from Australia, deported, or granted visa – Where attempts by Department to remove plaintiff from Australia unsuccessful as at date of hearing – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Where plaintiff sought writ of habeas corpus requiring release from detention forthwith – Whether application for leave to reopen constitutional holding in Al Kateb v Godwin (2004) 219 CLR 562 should be granted – Whether constitutional holding in Al Kateb should be overruled – Whether detention of plaintiff punitive contrary to Ch III of Constitution – Whether separation of plaintiff from Australian community pending removal constitutes legitimate and non-punitive purpose – Whether detention of plaintiff reasonably capable of being seen as necessary for legitimate and non punitive purpose.

Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Whether detention of plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.

Words and phrases – "alien", "conservative cautionary principle", "deportation", "deprivation of liberty", "executive detention", "habeas corpus", "indefinite detention", "judicial function", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "penal", "power to exclude", "practicable", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "separation from the Australian community", "unlawful non-citizen".

Constitution – s 51(xix), Ch III.
Migration Act 1958 (Cth) – ss 3A, 189, 196, 198.

Dr James Stellios appeared for the Applicant.

Reasons for the High Court’s decision can be found here.

The Owners – Strata Plan No 80877 v Lannock Capital 2 Pty Ltd [2023] NSWSC 1401

LAND LAW — Strata title — Termination of strata scheme — Where termination orders sought not unanimous — Where there are existing debts owed by owners corporation to an unsecured lender — Whether registered mortgagees ought be paid first from proceeds of sale if termination orders made — Whether collective sale pursuant to Part 10 of the Strata Schemes Development Act is more appropriate in the circumstances

Jennifer Mee appeared for the First Defendant and Michael Collins appeared for the Sixth Defendant.

Reasons for the decision can be found here.

Northern NSW Helicopter Rescue Service Limited v Attorney General of New South Wales [2023] NSWSC 515

CHARITIES AND NOT-FOR-PROFITS — charitable gifts and trusts — cy-près scheme — application to extend permitted geographical area of operation of charitable trust — whether effect of present terms of the charitable trust is that they have ceased to provide a “suitable and effective method” of using trust property for the purposes of Charitable Trusts Act 1993 (NSW), s 9 — where future financial viability of the charitable trust depends on extension of geographical area and possible expansion of permitted purposes — whether proposed clause defining expanded purposes of charitable trust is unjustifiably broad.

Dr Christos Mantziaris appeared for the plaintiff.

Reasons for the decision can be found here.

RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310

INDUSTRIAL LAW – appeal from orders of the Federal Circuit and Family Court of Australia – general protections application – where the primary judge found that the employer’s reasons for taking adverse action included the fact that the employee had made a complaint – whether the primary judge erred in relying on the subjective views of the employee as to whether she had been the subject of adverse action – whether the reasons were inadequate and/or involved an erroneous factual finding regarding the issue of demotion and being forcibly removed – whether the primary judge erred in finding that the decision-makers’ real reasons for the impugned decision included a prohibited reason and failed to give adequate reasons – whether the primary judge erred by applying a test of reasonable apprehension of bias – whether the primary judge erred by creating and relying on a nexus between Ms Lamb’s complaint and RPS’s response to the proposed study commitments – appeal dismissed.

Renae Kumar was led by Ian Neil SC, both appearing for the Respondent.

Reasons for the decision can be found here.