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Federal Court Judgments

Federal Court Judgments

By Dan Star QC



Practice and procedure

Whether vexatious proceedings order should be made

In Barkla v Allianz Australia Insurance Limited [2018] FCA 2070 (20 December 2018) the Court made a vexatious proceeding order against the applicant under s37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act) prohibiting him from instituting proceedings in the Court.

The case arose from a long line of Western Australian litigation, initially from an allegation that Allianz was liable to pay Mr Barkla compensation for a workplace injury. In addition to several proceedings against Allianz, Mr Barkla had subsequently brought actions against WorkCover and judicial staff.

The principles applicable to s37AO were considered at [76]-[79]. Charlesworth J explained at [79]: “The purpose of an order pursuant to s37AO of the FCA Act is not to punish a litigant for his or her conduct in a proceeding. The conduct of a litigant in proceedings may, however, be taken into account for the purpose of evaluating whether a particular proceeding satisfies the definition of a vexatious proceeding . . . The litigant’s conduct will also be relevant to the Court’s evaluation of the likelihood that the litigant will continue to institute vexatious proceedings if an order pursuant to s37AO is not made and so inform the exercise of the Court’s discretion . . .”

The Court was satisfied that the applicant is a person who had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (at [80]). That conclusion was able to be reached irrespective of whether the applicant had a genuine belief in the correctness of his legal position (at [81]). In considering the discretionary aspect of making an order, the applicant’s status as a self-represented litigant required a “cautious approach” (at [85]). Nonetheless, the Court made an order that had the effect that the applicant is prohibited from instituting a proceeding of any kind in the Federal Court without first obtaining leave to do so (see [82]). At [117]: “If an order is not made prohibiting Mr Barkla from commencing any action in this Court, there is an unacceptable likelihood that Mr Barkla would commence vexatious proceedings against a widening circle of perceived opponents. He would, I am satisfied, seek to draw Allianz back into any proceeding whether by purporting to serve subpoenas on its officers or by other mischievous means. I am also satisfied that if the order was not made, Mr Barkla would continue to vex the Court itself with threatening correspondence, to ignore the orders of the Court and to waste the Court’s judicial and administrative resources, as he has done in the present case”.

Migration law

Jurisdiction error by making an important finding of fact without underlying material to support it

In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (17 December 2018) the Full Court allowed an appeal from a single judge dismissing a review application of a decision by the Assistant Minister to cancel Mr Hands’ absorbed person visa. The Court allowed the appeal because the Assistant Minister’s decision to cancel the visa was affected by jurisdictional error.

Mr Hands is a New Zealand citizen who had arrived in Australia as a three-year-old in the 1970s. By operation of law, in 1994 he was granted an absorbed person visa. He had grown up and been accepted into the Aboriginal community on the South Coast of New South Wales, fathering five children throughout his 14-year relationship with an Aboriginal woman. The cancellation of the visa came about following Mr Hands’ guilty pleas to a number of charges stemming from a domestic violence incident, receiving a sentence of 12 months imprisonment. This engaged s501 of the Migration Act 1958 (Cth), which provides that the Minister must cancel the visa of a person who does not pass the “character test” for having a “substantial criminal record”.

The Full Court found that the Assistant Minister had made critical findings of fact without any basis in evidence. Refuting the unsubstantiated claim of the Assistant Minister that Mr Hands could resettle with relative ease in New Zealand, Allsop CJ (with whom Markovic J and Steward J agreed) held at [45]: “the statements that he ‘may experience some emotional and psychological hardship’ and ‘may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty’ are findings of fact simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker”. The making of the findings, without any material to found them, given their central importance in the reasoning, was a sufficient basis for a conclusion of jurisdictional error (at [46]).

The Chief Justice made these pertinent introductory comments at [3]: “By way of preliminary comment, it can be said that cases under s501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament”.

Practice and procedure

Summary judgment – elements for whether private cause of action for breach of statutory duty

In Bill v Northern Land Council [2018] FCA 1823 (22 November 2018) the Court refused the applicants’ application seeking leave to amend their originating application and statement of claim and granted the respondent’s application for summary dismissal of the proceedings under s31A(2) of the Federal Court of Australia Act 1976 (Cth). The summary judgment was based on the applicants having no reasonable prospect of establishing, as individuals, that they suffered actionable loss or damage.

While the respondent was ultimately successful in its summary dismissal application, the Court did not accept all aspects of its application in relation to breach of statutory duty. White J did not accept its argument that the statutory duties owed to the applicants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act) did not give rise to a private cause of action. Following the principles in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the statute must be closely examined to determine whether it imposes an obligation for the protection or benefit of a particular class of person, a breach of which will give rise to a private cause of action (at [60]-[61]). White J at [62] extensively summarised the general propositions from the authorities that bear on the assessment whether a statute intends that a private cause of action be available.

Ultimately, the Court did not engage in the close examination of the ALR Act to determine whether a private cause of action did exist. That was because the complexity of the task indicated it is a matter for trial and that there was no utility having regard to the summary dismissal of the proceedings on other grounds which overlapped (namely, no actionable loss (at [71]).

Consumer law

Regulator’s appeal on misleading and deceptive conduct and unconscionable conduct dismissed

In Australian Competition and Consumer Commission v Medibank Private Ltd [2018] FCAFC 235 the Full Court dismissed the ACCC’s appeal from orders of the trial judge dismissing its proceedings against Medibank for misleading and deceptive conduct and statutory unconscionability. Perram J gave the reasons of the Full Court for dismissing the appeal concerning misleading and deceptive conduct (Murphy J and Beach J agreed). Beach J gave the reasons of the Full Court for dismissing the appeal concerning unconscionable conduct under s21 of the Australian Consumer Law (Perram J and Murphy J agreed).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 9225 8757 or email

The full version of these judgments can be found at Numbers in square brackets refer to paragraph numbers in the judgment.

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