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Federal Court judgments

Every Issue

Cite as: Cite as: March 2012 86 (03) LIJ, p.57


Merger – market

In ACCC v Metcash Trading Ltd [2011] FCAFC 151 (30 November 2011) a Full Court considered the operation of the competition provisions in s50 of the Competition and Consumer Law Act 2010 (Cth). Consideration of the concepts of market and competition and standard of proof required for orders to be made. An appeal by the ACCC against the primary judge’s finding that there was not a separate market for the wholesale supply of packaged groceries to independent supermarkets was dismissed.


Directors – fiduciary duties

In Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd [2011] FCAFC 166 (19 December 2011) a Full Court dismissed an appeal against findings by the primary judge that a company executive breached statutory and fiduciary duties to the company by diverting business opportunities to a rival and that the rival was liable for being an accessory to a breach of trust. Consideration of the duties imposed by ss180–184 of the Corporations Act 2001 (Cth) and the knowledge required to be proved to establish liability as an accessory under Barnes v Addy (1874) LR 9 Ch App 244.


Practice – appeal from interlocutory decision that effectively determines proceeding

In Samsung Electronics Ltd v Apple Inc. [2011] FCAFC 156 (30 November 2011) a Full Court reviewed authority as to the purpose of interlocutory relief and the principles to be applied in appeals from interlocutory orders that effectively determined the proceeding. The Court reviewed the approaches found in Beecham Group Ltd v Bristol Laboratories [1968] HCA 1 and American Cyanamid Co. v Ethicon [1975] UKHL 1. The Court concluded that the trial judge had erred in making the orders and allowed the sale of the disputed items said to infringe a patent pending the trial on the condition that records were kept.


Practice – injunction – release from undertaking as to damages

In Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 3) [2011] FCAFC 165 (21 December 2011) a Full Court concluded a party should not have been released from the undertaking as to damages that might be caused by the orders.


Discovery – whistleblower – public interest immunity

In Police Federation of Australia v Nixon [2011] FCAFC 161 (12 December 2011) a Full Court considered when the provisions of the Whistleblowers Protection Act 2001 (Vic) prevented discovery of documents by the Chief Commissioner of Victoria Police in a claim she had disadvantaged an officer by reason of his union position contrary to s80 of the Workplace Relations Act 2006 (Cth). Consideration of the consequences of the primary judge failing to give reasons that adequately explained his orders.

Industrial law

Dismissal following failure to answer questions

In Villani v Holcim (Australia)Pty Ltd [2011] FCAFC 155 (2 December 2011) a Full Court concluded that Fair Work Australia did not make any jurisdictional error on finding a dismissal of an employee was not harsh, unjust or unreasonable where the employee failed to answer questions about whether he had been involved in a conflict of interest. The Court observed that the finding of whether a dismissal was harsh etc. was the responsibility of Fair Work Australia and the enquiries were not unrelated to the contract of employment.

Intellectual property

Trade marks – infringement

In Idameneo (No 789) Ltd v Symbion Pharmacy Services Pty Ltd [2011] FCAFC 164 (15 December 2011) a Full Court considered the primary judge had erred in considering the question of whether trade marks were infringed within s120 of the Trade Marks Act 1995 (Cth) by parties in a specialised market without evidence from those in the market.

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


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