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Federal Court judgments

Every Issue

Cite as: December 2009 83(12) LIJ, p.56

Administrative law

Inadequate reasons of tribunal

In Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 (2 October 2009) a Full Court concluded the AAT had not given adequate reasons for its decision to set aside a decision to cancel the registration of an aircraft maintenance engineer and to issue a conditional certificate under the Civil Aviation Regulations 1988 (Cth). The Full Court considered whether the decision or the reasons should be quashed. It concluded the power to alter the reasons of the AAT under s43AA(1) of the AAT Act for “obvious error” did not empower the AAT to re-write its reasons. It also considered the consequence of the AAT member ceasing to be a member of the AAT. Matter remitted to the AAT.

Federal Court

Parties – proceedings under OHS Act – joinder of parties – related corporation in occupation of worksite

In John Holland Pty Ltd v Comcare [2009] FCAFC 127 (22 September 2009) a Full Court concluded the primary judge did not err in proceedings where Comcare sought a declaration that premises were unsafe within the Occupational Health and Safety Act 1991 (Cth) in ordering another member of a corporate group that was a co-occupier of the premises be joined as a respondent under FCR O.6 r8 to ensure that all matters in dispute were decided in the proceeding.

Federal Court

Practice – whether orders for summary dismissal of proceeding are interlocutory orders

In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 (9 September 2009) a Full Court concluded that an order that a proceeding be summarily dismissed was an interlocutory order and that leave to appeal against it was required.

Industrial law

Penalty – course of conduct leading to multiple offences

In Draffin v CFMEU [2009] FCAFC 120 (10 September 2009) a Full Court considered the primary judge had erred in imposing penalties for one course of conduct that involved multiple breaches of the Building and Construction Industry Improvement Act 2005 (Cth).


Visas – cancellation of criminal justice certificate

In MIC v Zhang [2009] FCAFC 129 (24 September 2009) a Full Court concluded the power of the Minister for Immigration to cancel a criminal justice certificate under s162(1) of the Migration Act 1958 (Cth) was not subject to the rules of natural justice and was a broad power.


Whether tribunal proceeding involved jurisdictional error

In Aporo v MIC [2009] FCAFC 123 (11 September 2009) a Full Court concluded the process of the MRT did not involve jurisdictional error arising from a failure to apprehend A was dyslexic and unable to fully complete forms or that the interview was therefore unfair.

Statutory construction

Notice under s155 Trade Practices Act

In Singapore Airlines Pty Ltd v ACCC [2009] FCAFC 136 (2 October 2009) a Full Court concluded a notice issued under s155 of the TP Act requiring information on freight rates for transport “including on routes to and from Australia” was not to be construed in a precious or over-technical manner. Review of authorities as to the operation of s155 of the TP Act.


Administrative penalty

In C of T v Star City Pty Ltd (No 2) [2009] FCAFC 122 (10 September 2009) a Full Court concluded that before an administrative penalty for an erroneous tax return could be imposed under s266L of the ITAA, the Commissioner was required to be satisfied as an objective fact that a scheme was carried out for the sole or dominant purpose of enabling a person to avoid tax. The Full Court allowed an appeal where a taxpayer had suffered an administrative penalty for erroneously claimed prepayment of rent as a deduction from income and not as a capital expense.


Charities – body reviewing relief of poverty

In C of T v Aid/Watch Incorporated [2009] FCAFC 128 (23 September 2009) a Full Court considered how entities were to be identified as “charities” for taxation legislation. The Court concluded the AAT had erred in finding a body that monitored and lobbied the provision of foreign aid to ensure that the local population was involved was involved in the relief of poverty and thus a “charity” for tax purposes.


GST – acquisition of foreign currency for use outside Australia

In Travelex Ltd v C of T [2009] FCAFC 133 (29 September 2009) a Full Court concluded that the conversion of Australian dollars into foreign currency for use outside Australia did not attract liability to pay GST.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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