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Federal court judgments

Every Issue

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.59


Bankruptcy notice – whether copy of final judgment “attached” – curing of defects

In Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144 (30 October 2014) a Full Court found the requirement of s41 of the Bankruptcy Act 1966 (Cth) that the final judgment be “attached” to the bankruptcy notice when it was issued was satisfied where the application for the notice was sent, and the notice was issued, by email.


Whether provisions for costs in High Court Rules exclude state costing provisions for acting in High Court matter – who is proper claimant for counsel’s fees

In Batterham v Goldberg [2014] FCAFC 136 (15 October 2014) a Full Court concluded the existence of provisions for costs of High Court proceedings in High Court Rules Ch 5 did not create any inconsistency within Constitution s109 preventing the operation of state legislation concerning assessment of solicitor-client costs in acting in High Court matters. The Court also concluded that in the absence of any specific agreement between a client and counsel the proper creditor in a claim against the client for counsel’s fees was the instructing solicitor who retained counsel.

Industrial law

Awards – classification

In Transport Workers’ Union of Australia v Coles Supermarket’s Australia Pty Ltd [2014] FCAFC 148 (3 November 2014) a Full Court concluded the Federal Circuit Court had not erred in finding that “customer service agents” employed to deliver online shopping services were not covered by the Road Transport and Distribution Award but by retail industry awards. Consideration of the interpretation of awards.

Judicial review

AD (JR) Act – whether decision of university to suspend enrolment of student reviewable

In Luck v University of South Queensland [2014] FCAFC 135 (15 October 2014) a Full Court concluded the primary judge had not erred in declining to disqualify himself because the judge was also the Judge Advocate General for the Australian Defence Force. The Court concluded the appointment of the judge to this position did not contravene the separation of powers. The Court found the primary judge had not erred in finding decisions of the University to suspend L were not reviewable under the Administrative Decisions (Judicial Review) Act 1975 (Cth) as made in some way under the Higher Education Funding Act 1988 (Cth).


Visas – cancellation – policy – whether discretion in Act fettered

In Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (27 October 2014) a primary judge set aside a decision of the Administrative Appeals Tribunal to affirm deportation under s501 of the Migration Act. The primary judge referred to Sean Investments Pty Ltd v McKellar [1981] FCA 191 and found the discretion was unfettered even though subject to ministerial policy guidelines. The Full Court concluded the primary judge was in error because the discretion was subject to the guidelines. The Full Court considered whether any demonstrated jurisdictional error had a discernible effect on the decision before relief will be granted. The Full Court allowed the Minister’s appeal.


Migration decision – judicial review of conduct prior to migration decision

In SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 (29 October 2014) a Full Court concluded that various decisions of the Department when preparing to made a decision under s198(6) of the Migration Act 1958 (Cth) to remove SZSSJ constituted conduct preparatory to making a decision that the Federal Circuit Court should have accepted it had jurisdiction to review under s474(3)(h) of that Act.


Independent reviewer – review by subsequent reviewer

In WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 (20 October 2014) the tape of the interview WZARH had with the first independent merits reviewer was heard by the second reviewer after the first became unable to finalise the matter. The Full Court did not decide that claimant’s such as WZARH were entitled to an oral hearing but the Court did accept there was an expectation that the person who conducted the face-to-face interview would be the decision-maker or that any one appointed as replacement would conduct a fresh interview.


Unreasonable decision – decision based on incorrect facts

In Minister for Immigration and Border Protection v SZSNSW [2014] FCAFC 145 (3 November 2014) SZSNSW made claims of sexual assault when first interviewed on Christmas Island when making his claim for refugee status. The independent merits reviewer appointed to advise the Minister on whether to allow the claim to proceed wrongly concluded SZSNS had not then made a claim of sexual assault but had made it subsequently and this undermined his credit. The Full Court concluded the decision to recommend the claim for refugee status not be allowed involved an error of law and while it differed from the Federal Circuit Court as to the analysis, it dismissed the Minister’s appeal.


Advice to person in detention

In SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140 (28 October 2014) a Full Court considered whether the applicant applying for an extension of time had had sufficient access to legal advice.

Native title


In Oil Basins Ltd v Watson [2014] FCAFC 154 (17 November 2014) a Full Court concluded there was no error in the award of costs against the appellant by the primary judge under s85A of the Native Title Act 1993 (Cth) in proceedings where the appellant resiled from disputing the “connection” to the land as an issue. Consideration of costs in Native Title proceedings.


Validity – whether creation of a computer program involves “manufacture”

In Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (10 November 2014) a Full Court found the creation of a computer program to create a securities index and assist investing in the stock exchange did not constitute or produce a form of “manufacture” that could be patented under s18 of the Patents Act 1990 (Cth).

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


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