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Federal Court judgments

Every Issue

Cite as: March 2011 85(3) LIJ, p.57


In Donnelly v Maxwell-Smith [2010] FCAFC 154 (16 December 2010) a Full Court considered the effect of an order of the Federal Court that deprived a trustee in bankruptcy of his costs in a proceeding. The Court also concluded that an order of a judge to remit to a registrar what costs the trustee was entitled to was an interlocutory order and leave was required before it could be appealed.

Licence fee – procedural fairness – reliance on obscure evidence

In Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 (13 December 2010) a Full Court concluded the appellant had been denied natural justice when the Copyright Tribunal set a licensing fee under the Copyright Act by reference to an earlier study that was overshadowed in the hearing by a larger later study that was successfully criticised. The Court concluded the Tribunal should have disclosed its approach to the parties.

Nature of appeal from magistrate to Federal Court

In New Zealand v Johnston [2011] FCAFC 2 (11 January 2011) a Full Court restated that an appeal from a decision of a state magistrate under the Extradition Act 1988 (Cth) was an appeal in the strict sense and the decision could only be overturned on finding an error of law. The Full Court concluded the primary Federal Court judge (who found extradition to New Zealand “unjust” under s34(2) of the Act where the state magistrate found the extradition “oppressive”) had erred. The Court concluded that while a conclusion that extradition was oppressive etc. was a question of mixed fact and law, the primary judge had erred. Appeal allowed and extradition ordered.

Income tax
Exempt entities – non-profit society established to promote development of agriculture etc.

In C of T v Co-operative Bulk Handling Ltd [2010] FCAFC 155 (17 December 2010) a Full Court concluded that in deciding whether an entity was exempt under s50-1 of the Income Tax Assessment Act 1997 (Cth) from paying tax as a charity, it was necessary to consider the entire activities of the entity. Appeal by Commissioner dismissed.

Industrial law
Agreement – terms – requirement to consult with unions if proposed changes will impact “employees’ terms and conditions” – privatisation of Queensland railways

In QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2010] FCAFC 150 (15 December 2010) the primary judge found that various collective agreements that required employers to consult unions before making changes that affected rail employees’ terms and conditions were breached in the privatisation of Queensland Rail. The primary judge imposed penalties. The appeal by the employers was dismissed save that the civil penalties imposed for breaching the agreements were reduced.

Industrial law
Registration of organisation – judicial power – legislation to reverse judicial decision

In Australian Education Union v Lee [2010] FCAFC 1153 (20 December 2010) an application to register an association of school principals was initially granted and then refused in 2008: see AEU v Lawlor [2008] HCA 135 and subsequent proceedings in the AIRC. The rules of the proposed association did not allow for cessation of membership after cessation of employment and thereby permitted an industrial dispute with persons who were not in the “industry”. By s26A the Fair Work Act 2009 (Cth) provided that registration of associations such as that of the school principals was validated and deemed to have always been valid. The primary judge concluded s26A was valid. This was upheld by a Full Court. The Court concluded s26A did not offend judicial power as it did not affect the order made in Lawlor. Appeal dismissed.

Successful appeal by Minister – costs

In MIC v Khadgi (No 2) [2010] FCAFC 152 (17 December 2010) a Full Court allowed an appeal by the Minister. It considered when an unsuccessful respondent was entitled to a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) and granted one.

When document dispatched – “if not delivered in seven days return”

In SZOBI v MIC (No 2) [2010] FCAFC 151 (16 December 2010) a Full Court considered when a document was dispatched within s494B(4) of the Migration Act 1958 (Cth). The Court concluded that a statement on the envelope containing a document that if the envelope was not delivered in seven days it should be returned to the department did not qualify or limit the fact that the document was dispatched when the envelope was posted.

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


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