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Federal Court judgments

Every Issue

Cite as: April 2011 85(4) LIJ, p.59

Contempt of court

Penalty

In Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17 (16 February 2011) a Full Court concluded a sentence of 18 months imprisonment with the last 12 months suspended for contempt of court orders that prevented a person from trading in Ugg boots was manifestly excessive.

Courts

Onus of proof

In Huntsman Chemical Company Australia Ltd v Narellan Pools Ltd [2010] FCAFC 7 (1 February 2011) a Full Court concluded the primary judge did not err in finding for the respondent notwithstanding an erroneous finding that certain evidence should have been called. The Full Court concluded the primary judge had correctly applied the onus of proof and the error was not prejudicial.

Damages

Negligence – loss of a chance

In La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 (19 January 2011) a Full Court considered what damages can be awarded for the “loss of a chance” caused by negligent valuation of land.

Industrial law

Interfering with union official – employer suspending union representative – whether offence requires intent

In Barclay v Board of Bendigo Regional Institute of TAFE [2011] FCAFC 14 (9 February 2011) a Full Court considered how the offence created in s340(1) of the Fair Work Act 2009 (Cth) of taking adverse action against an employee by reason of holding union office is established.

Industrial law

Offences – coerce person to become union member

In CFMEU v Alfred [2011] FCAFC 13 (10 February 2011) a Full Court considered how the offence of coercing a person to become, or cease to be, a member of an association (formerly found in s788 of the Workplace Relations Act 1996 (Cth)) was established.

Migration

Visa cancellation on character grounds – AAT accepting report on children confidentially – whether jurisdictional error

In Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 (15 February 2011) a Full Court concluded in a joint judgment that the Administrative Appeals Tribunal (AAT) did not err in dismissing an application to review a decision to cancel a visa by accepting a report on the welfare of the applicant’s children on a confidential basis.

Superannuation

Appeal – appeal on question of law – whether appeal on question of fact and law an appeal on a question of law

In Board of Trustees of the State Sector Superannuation Scheme (Qld) v Eddington [2011] FCAFC 8 (1 February 2011) the Superannuation Complaints Tribunal (SCT) found S was not entitled to benefits for total and permanent disability after suffering a psychiatric reaction to dogs barking at him and chasing him in the course of his employment as an inspector. The SCT found S had a diagnosed but undisclosed schizophrenia condition at the time of the work incident. An appeal to the primary Federal Court judge was allowed. The appeal by the trustees to a Full Court was allowed. The Full Court considered when a “no evidence” ground of appeal could constitute an error of law and the nature of the decision made by the SCT in substitution for that of the superannuation trustee. It found the SCT had correctly undertaken the review. Appeal allowed.

Taxation

Double taxation – New Zealand

In Russell v C of T [2011] FCAFC 10 (4 February 2011) a Full Court considered the meaning of the term “personal services” in the tax agreement with New Zealand that is in Sch 4 to the International Tax Agreement Act 1953 (Cth).

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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