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Federal Court judgments

Every Issue

Cite as: March 2013 87 (3) LIJ, p.53

Federal practice

When state limitation provisions apply to proceedings for commonwealth penalties

In Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCAFC 193 (21 December 2012) the Fair Work Ombudsman filed an application in the Federal Magistrates Court in December 2011 alleging breaches of industrial legislation between March 2006 and March to May 2009. The federal magistrate accepted the proceedings were for a penalty and outside the limitation period set by s18 of the Limitation Act 1969 (NSW) that was “picked up” by s79 of the Judiciary Act. The Full Court allowed the appeal. It concluded (at paras [56] – [58]) that the term “enactment” in s18 of the Limitation Act only applied to state Acts and that by imposing limitation periods for some matters and none for others the commonwealth industrial legislation had “otherwise provided” so as to exclude s79 of the Judiciary Act.

Freedom of information (Cth)

“Documents of an administrative nature”

In Kline v Official Secretary to the Governor-General [2012] FCAFC 184 (19 December 2012) by s6A the FOI Act 1982 (Cth) does not apply to a document of the Official Secretary to the Governor-General unless the document relates to “matters of an administrative nature”. A Full Court concluded that documents relating to the Order of Australia honours awards were not documents of an administrative nature and thus were outside the FOI Act.

Human rights


In Nojin v C of A [2012] FCAFC 192 (21 December 2012) a Full Court concluded that unlawful discrimination had occurred contrary to the Disability Discrimination Act 1992 (Cth) where the wages of intellectually disabled persons were set using methodology created for physically disabled persons.

Income tax


In Cyonara Snowfox Pty Ltd v C of T [2012] FCAFC 177 (4 December 2012) a Full Court considered the operation of the provisions in s75-5 of the A New Tax System (Goods and Services Tax) 1999 (Cth) relating to the tax payable on sale of freehold interests as at March 2005.

Income tax

Income – payments to nominee

In Sent v C of T [2012] FCAFC 187 (19 December 2012) a Full Court concluded payments made to the nominee of the taxpayer in substitution for past and future bonus payments under his contract of employment were assessable as part of his income.

Industrial law

Unlawful industrial action – accessories – intention – mere communication of threat

In CFMEU v Director of Fair Work Building Industry Inspectorate [2012] FCAFC 178 (6 December 2012) a Full Court concluded the primary judge had erred in finding a union delegate had engaged in unlawful industrial action by merely communicating a threat about it.


Open-ended detention of refugee

In SBEG v C of A [2012] FCAFC 189 (20 December 2012) a Full Court dismissed an appeal by a person granted refugee status but denied a visa on security grounds (and thus exposed to indefinite detention) on the ground he was detained in “an environment of incarceration”. Duty of jailers to take reasonable care of detainees considered.

Trade and commerce

Competition – energy regulation – whether issue raised before regulator

In SPI Electricity Pty Ltd v Australian Competition Tribunal [2012] FCAFC 186 (20 December 2012) s70O of the National Electricity Scheme (see National Electricity (Victoria) Act 2005 applying the National (South Australia) Electricity Act 1996 (SA)) did not prevent the appellant supplier from raising an issue as to price indexation before the Australian Competition Tribunal on review as the issue had been raised before the Australian Energy Regulator.


Post traumatic stress disorder

In Repatriation Commission v Bawden [2012] FCAFC 176 (3 December 2012) a Full Court allowed an appeal from the conclusion of the primary judge that a diagnosis of post traumatic stress disorder did not require the decision-maker to be satisfied on the balance of probabilities that the veteran suffered the traumatic event.

Workers compensation (Cth)

Journey accident

In Comcare v PVYW [2012] FCAFC 181 (13 December 2012) a Full Court concluded an employee injured on an overnight stay at a motel in the course of her employment was entitled to compensation under the SRC Act.

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


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