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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
APPEALS — crime — appeals against sentence — murder — wounding with intent to cause grievous bodily harm — relative youth — applicant has mental health impairment but no psychotic disorder — sentence judge gave consideration to but did not impose a life sentence due to applicant’s age and mental health
CRIME — whether the sentencing judge gave adequate reasons regarding the meaning of “unwarranted double counting” — no error
CRIME — whether the sentencing judge considered that the applicant’s term of imprisonment could be more onerous than the theoretical inmate — error established
CRIME — whether the sentence judge erred in assessing the applicant’s demeanour — no error
CRIME — whether the learned sentencing judge erred in failing to take into account the applicant’s youth other than for the purpose of consideration of a life sentence — no error
CRIME — appeals against sentence — resentence — a somewhat reduced sentence is warranted having regard to the sentence judge’s error in not considering the impact of the applicant’s mental health on the onerousness of his custody — contra view that despite the error, no other sentence is called for at law having regard to the objective seriousness, consideration of proportionally and specific deterrence in this case
Katherine Fallah successfully represented the Applicant.
Reasons for the decision can be found here.
Constitutional law — Judicial power — Federal jurisdiction — Where person convicted of offence against law of Commonwealth in state court — Where person sought order for inquiry into conviction — Where person sought to have matter referred to New South Wales Court of Criminal Appeal — Where application unsuccessful — Where person sought judicial review — Whether provisions of Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) applied by their own force to conviction by New South Wales court for offence under law of Commonwealth — Whether provisions of CAR Act picked up by s 68(1) of Judiciary Act 1903 (Cth) — (CTH) Criminal Code Act 1995 ss 11.5, 307.11 — (NSW) Crimes (Appeal and Review) Act 2001 ss 76, 77, 78, 79, 86 — (NSW) Criminal Appeal Act 1912 s 5.
Dr James Stellios appeared as amicus curiae.
Reasons for the decision can be found here.
Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction.
Constitutional law (Cth) – Trial by jury – Where prior to self-government Crimes Act 1900 (NSW) picked up and applied in ACT as surrogate federal law – Where following self-government Commonwealth law provided Crimes Act 1900 (NSW) shall be taken to be enacted by ACT Legislative Assembly and may be amended and repealed – Where subsequent ACT law provided Crimes Act 1900 (NSW) to be treated as an Act passed by ACT Legislative Assembly – Where ss 54 and 60 of Crimes Act 1900 (ACT) were indictable offences – Whether ss 54 and 60 were laws of the Commonwealth within meaning of s 80 of Constitution – Whether "any law of the Commonwealth" within meaning of s 80 of Constitution includes laws of ACT Legislative Assembly as "subordinate legislature" – Whether miscarriage of justice as trial on indictment was not by jury contrary to s 80 of Constitution – Whether R v Bernasconi (1915) 19 CLR 629 should be re-opened or overruled.
Words and phrases – "amend or repeal", "case management", "Ch III court", "COVID-19 emergency period", "gatekeeping function", "independent body politic", "institutional integrity", "interests of justice", "judge alone trial", "Kable principle", "law of the Commonwealth", "overruling constitutional precedent", "peace, order and good government of the Territory", "picked up and applied", "plenary power", "proposed order", "prudential approach", "self-government", "statutory fiction", "subordinate legislature", "taken to be an enactment", "trial on indictment".
Constitution, Ch III, ss 80, 111, 122. ACT Self-Government (Consequential Provisions) Act 1988 (Cth), s 12. Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 22, 34.
Dr James Stellios appeared for the appellant.
Reasons for the decision can be found here.
JUDGMENTS — Execution of orders for costs — The first plaintiff claims to be a trustee of a unit trust holding property at Point Piper previously registered in the name of the second and third plaintiffs. The defendant, the mortgagee of the property, sold it in 2006 following mortgage default. The plaintiffs commenced proceedings in 2009 claiming relief against the defendant in respect of the mortgagee sale surplus funds. The 2009 proceedings were dismissed. Subsequently, the plaintiffs commenced further proceedings in 2012, 2015, 2016 and 2018 all raising issues arising from the defendant’s handling of the surplus funds. In 2014, orders were made precluding the plaintiffs from commencing relief in respect of the initial cause of action. In 2017, orders were made staying the proceedings conditional upon the plaintiffs paying what were then 10 separate costs orders in favour of the defendant subject to three specified set-off items. The defendant in 2015-2016 served a statutory demand notice against the first plaintiff and bankruptcy notices against the second and third plaintiffs which notices were set aside. The defendant took steps to have costs under what were then 13 costs orders assessed and had certificates registered in the Local Court in November 2019 creating 13 separate Local Court judgments. The defendant apart from an earlier attempt to seek an examination order at no stage attempted to issue execution by means of a writ for the levy of property or a garnishee order or a charging order in respect of the 13 costs orders and judgments. In 2020, the third plaintiff died and as yet no grant of representation has issued in his estate. In early 2023, the defendant sought by notice of motion the appointment of a receiver and the issue of a writ of sequestration. The plaintiffs’ then solicitor ceased to act for the plaintiffs subsequent to the filing of the motion. The Registrar in Equity listed the motion for hearing. The plaintiffs appeared by counsel, seeking an adjournment, the setting aside of the Registrar’s orders and opposing the appointment of a receiver and issue of a writ — The defendant by failing to use an available statutory and administrative means to register a single judgment instead of 13 separate judgments created a cumbersome platform for enforcement of costs — Nonetheless, the Court’s incidental power to regulate its own processes when informed by the overriding purposes of the Court’s approach to proceedings dictates that in the particular prevailing circumstances the appointment of a receiver on specific terms is appropriate.
CIVIL PROCEDURE — Restraining proceedings — The Court has no inherent power to restrain or preclude a litigant from commencing fresh or new proceedings without leave of the Court but does have inherent power to restrain a litigant from making frequent vexatious applications in pending proceedings — The Court has statutory power on the dismissal of proceedings to place terms preventing a litigant from bringing fresh proceedings or claiming the same relief in fresh proceedings.
JUDGMENTS — Enforcement — Ordinary means of enforcement of judgments — Distinction between judgment for payment of monies and judgments requiring a party to do an act or abstain from doing an act.
RECEIVERS — Appointment of receiver to facilitate execution of costs — Directions and powers to be given to the receiver are purpose-based to facilitate the simplification of the process of execution.
COSTS — Discussion of the character of costs orders — Distinction between declaration of liability for costs and quantification of costs — Costs orders are orders for payment of money — Discussion regarding when a costs order is enforceable — Fragmentation of proceedings across two or more courts is generally undesirable — However, the statutory regime for assessment of costs envisages and mandates that a costs order creating a liability in one court may be quantified by an assessment process and a certificate registered as a judgment in another court.
COSTS — Costs certificates — Distinctive characteristics — The entry of judgment on a registered costs certificate is a ministerial act. It is not a judgment of a court as such. It takes its force from the statutory provisions. Statutory provisions make the certificate enforceable as a judgment but otherwise do not alter its legal effect as an adjudication of a costs assessor — A Supreme Court costs order does not ‘merge’ in a ‘judgment’ of another court upon registration in that other court of a certificate of assessment of such costs order.
COSTS — Multiple costs orders — The regime for assessment and registration of certificate of costs depends upon the legal profession legislation in force at the time of the proceedings to which the costs assessment relates were commenced — The regimes since 2004 allow for registration of a single judgment instead of multiple separate judgments for each costs order.
WRITS — Writ for sequestration — Consideration of requirements for issue of writ of sequestration — Requirements differ as between orders for payment of money and orders that a party do or abstain from doing a particular act.
PRACTICE — Failure of party to formulate a claim despite various opportunities — Court imposes leave requirement for commencement of any further proceedings — Repeated applications to ventilate issues covered by leave requirement — Whether commencement of proceedings without prior leave of the Court gives rise to a nullity or merely makes proceedings susceptible to being stayed or dismissed.
PRACTICE — Notice of ceasing to act —Requirement to serve notice on parties to the proceedings in addition to service of notice on the client.
PRACTICE — Appearance — Procedure — Representation of company by director.
PARTIES — Representation of interests of a deceased’s estate.
COURTS — Tipstaff — Functions.
CAVEATS — Caveatable interests — A judgment debt is not ordinarily a secured interest and does not create a caveatable interest — A writ, whether or not it is recorded in the Register, does not create any interest in land.
Richard Parsons appeared for the defendant.
Reasons for the decision can be found here.
MIGRATION – appeal – Direction No. 90 – whether Tribunal took the “other considerations” into account – whether Tribunal engaged in required evaluative exercise of weighing or balancing the considerations identified as being relevant to the decision whether there is “another reason” to revoke the cancellation of the appellant’s visa – failure of Tribunal to carry out statutory task – appeal allowed
Richard Reynolds and Ms Stephene Tully successfully represented the Appellant.
Reasons for the decision can be found here.
PARLIAMENTARY ELECTIONS (CTH) – application for declaration and pecuniary penalties for alleged contraventions of Commonwealth Electoral Act 1918 (Cth) s 321D(5) – compliance with cl 11(3)(a) and (b) of Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth) (Determination) – where candidate in 2022 general election notified in 8pt font particulars of authorisation of posters and corflutes communicating electoral matter – whether notification of authorisation was “reasonably prominent” and or “legible at a distance at which the communication is intended to be read” as required by cl 11(3)(a) and (b) of Determination – held: proceeding dismissed.
STATUTORY INTERPRETATION – principles of construction having regard to legislative purpose and objects of Act and legislative intention to enact valid legislation – where Pt XXA of Electoral Act burdened implied constitutional freedom of communication on government and political matter – where the Parliament intended Pt XXA to be within implied freedom – whether requirement in s 321D(5) for communication of electoral matter to include particulars of name and address of person authorising construed as burdening implied freedom – meaning of “reasonably prominent” in cl 11(3)(a) of Determination – meaning of “legible at a distance at which the communication is intended to be read” in cl 11(3)(b) of Determination – use of extrinsic material to confirm construction of Act and legislative instrument under s 15AB(1)(a) of Acts Interpretation Act 1901 (Cth) and s 13(1) of Legislation Act 2003 (Cth).
CIVIL PENALTIES – whether respondent acted under mistaken but reasonable belief about facts so as to establish defence under s 95(1) of Regulatory Powers (Standard Provisions) Act 2014 (Cth).
CONSTITUTIONAL LAW – whether Electoral Act s 321D(5) and (7) and or Determination cll 11(3)(a) and (b) invalid because they impermissibly allowed infringement of, or infringed, the implied constitutional freedom of communication on government and political matter – where constitutional issue not necessary to decide.
Dr Christopher Ward SC successfully represented the Defendant.
Reasons for the decisions can be found here.
APPEALS – Procedure – Time limits – Extension of time – where default judgment entered for respondent for possession of land owned by applicant – where delay of three years since filing notice of intention to appeal – whether explanation for delay satisfactory – whether fairly arguable case – where applicant took issue with documents relied on in Statement of Claim – where default judgment as no defence filed – where applicant did not identify error with decision to enter default judgment – leave to extend time to move on Summons refused
Michael Collins appeared for the Respondent.
Reasons for the decision can be found here.
Liability limited by a scheme approved under Professional Standards Legislation.