UPDATE 149
FEBRUARY 2011
FEDERAL COURT PRACTICE
Justice G Flick
Highlights

New commentary and cases added to Federal Court Act and
Regulations, Federal Court Rules, Evidence Act, Federal
Proceedings (Costs) Act and Acts Interpretation Act

Amended legislation

Cross-references inserted
Prod No 3640QBR149
Print Post Approved PP255003/00337
 Thomson Reuters (Professional) Australia Limited 2011
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UPDATED COMMENTARY
Federal Court Act and Regulations
New commentary
New commentary includes:
[FCA18C.20] Registrar;
[FCA21.30] Utility of declaratory relief;
[FCA24.60] Nature of appeal – a re-hearing;
[FCA25.30] Appropriate for a single judge – s 25(1A);
[FCA31.40] Intention;
[FCA32.20] Jurisdiction in associated matters;
[FCA53B.20] Evidence inadmissible.
New cases
New cases include:
Case name
Topic
Australian Competition & Consumer
Commission v Powerballwin.com.au Pty
Ltd [2010] FCA 378
[FCA21.30] Utility of declaratory
relief
Ginos Engineers Pty Ltd v Autodesk
Australia Pty Ltd (2008) 249 ALR 371;
[2008] FCA 1051
Deckers Outdoor Corporation Inc v
Farley (No 6) [2010] FCA 391; The
Registrar v Unnamed Respondent
(1994) 234 FLR 248; [1994] ACTSC 24
Petrotimor Companhia de Petroleos
SARL v Commonwealth (2003) 128 FCR
507; 198 ALR 269; [2003] FCAFC 83
Pinot Nominees Pty Ltd v Federal
Commissioner of Taxation (2009) 181
FCR 392; [2009] FCA 1508
[FCA25.30] Appropriate for a single
judge – s 25(1A)
[FCA31.40] Intention
[FCA32.20] Jurisdiction in
associated matters
[FCA53B.20] Evidence inadmissible
Federal Court Rules
New commentary
New commentary includes:
[FCR6.8.50] The joinder of a necessary party – r 8(1)(b);
[FCR6.17.20] Interveners;
[FCR11.16.70] Prejudice, embarrassment or delay;
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[FCR16.6.45] Privilege – O 16 r 6(3)(c);
[FCR21.1.50] Applications for leave;
[FCR22.4.20] Withdrawal of admission;
[FCR29.2.20] May make orders;
[FCR35.1.20] No case submission;
[FCR35.7.50] The discretionary power to vary or set aside;
[FCR35.10A.20] Consent orders – judicial consideration of;
[FCR52.14AA.20] Interveners;
[FCR52.20.30] Security for costs –an appeal;
[FCR52.20.40] The court may – the discretion conferred;
[FCR52B.5.30] A statement outlining facts and contentions;
[FCR62.4.30] A gross sum specified – r 4(2)(c);
[FCR62.11.20] Review by a judge;
[FCR62.19.20] Costs to be allowed;
[FCR62.36A.20] An awarded judgment – not less than $100,000;
[FCR62.45.20] Certification of Taxation – r 45(3);
[FCR62.45.50] At any time – r 4(3);
[FCR80.3.20] The pro bono appeal;
[FCR80.4.30] A referral.
New cases
New cases include:
Case name
Topic
John Holland Pty Ltd v Comcare (2009)
112 ALD 405; 190 IR 165; [2009]
FCAFC 127
R v Ludeke; Ex parte Customs Officers’
Assn of Australia (1985) 155 CLR 513;
59 ALJR 483; 13 IR 86; 59 ALR 417;
[1985] HCA 31; Sportsbet Pty Ltd v
Harness Racing Vic (No 2) [2010] FCA
952
Priest v New South Wales [2006]
NSWSC 12
Bailey v Department of Land & Water
Conservation (2009) 74 NSWLR 333;
[2009] NSWCA 100
Tsekouras v Olson [2009] FCA 429
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[FCR6.8.50] The joinder of a
necessary party – r 8(1)(b)
[FCR6.17.20] Interveners
[FCR11.16.70] Prejudice,
embarrassment or delay
[FCR16.6.45] Privilege – O 16 r
6(3)(c)
[FCR21.1.50] Applications for leave
Case name
Topic
Jeans v Commonwealth Bank of
Australia Ltd (2003) 204 ALR 327; [2003]
FCAFC 309; Optical 88 Ltd v Optical 88
Pty Ltd [2010] FCA 310
[FCR22.4.20] Withdrawal of
admission
Anvil Hill Project Watch Association Inc v
Minister for the Environment & Water
Resources (2007) 97 ALD 398; 243 ALR
784; [2007] FCA 1480
Cahill v Construction, Forestry, Mining &
Energy Union (No 2) (2008) 170 FCR
357; 175 IR 357; 250 ALR 223; [2008]
FCA 1292
Wati v Minister for Immigration &
Multicultural Affairs (1997) 78 FCR 543;
47 ALD 1; 148 ALR 578
Eat Media Pty Ltd v Mulready Media Pty
Ltd (No 2) (2010) 267 ALR 573; [2010]
FCA 392
NAGV v Minister for Immigration &
Multicultural & Indigenous Affairs (2003)
130 FCR 46; 77 ALD 699; 202 ALR 1;
[2003] FCAFC 144
Tait v Bindal People [2002] FCA 322
[FCR29.2.20] May make orders
Robertson v Knott Investments Pty Ltd
(No 2) [2010] FCA 796
[FCR52.20.40] The court may – the
discretion conferred
Rio Tinto Ltd v Federal Commissioner of
Taxation (2004) 55 ATR 321; [2004]
FCA 335
Seven Network Ltd v News Ltd, [2007]
FCA 2059; Ginos Engineers Pty Ltd v
Autodesk Australia Pty Ltd (2008) 249
ALR 371; [2008] FCA 1051; Chrubasik v
National Australia Bank (No 2) [2009]
FCA 826; Wenkart v Pantzer (No 3)
[2010] FCA 1423
Motor Trades Association of Australia
Superannuation Fund Pty Ltd v Rickus
(No 5) [2009] FCA 1221; Windsor v
Sydney Medical Service Co-Operative
Ltd (No 3) [2010] FCA 364
[FCR52B.5.30] A statement
outlining facts and contentions
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[FCR35.1.20] No case submission
[FCR35.7.50] The discretionary
power to vary or set aside
[FCR35.10A.20] Consent orders –
judicial consideration of;
[FCR62.45.50] At any time – r 4(3)
[FCR52.14AA.20] Interveners
[FCR52.20.30] Security for costs –
an appeal
[FCR62.4.30] A gross sum specified
– r 4(2)(c)
[FCR62.11.20] Review by a judge
Case name
Topic
Canvas Graphics Pty Ltd v Kodak
(Australasia) Pty Ltd (unreported, Fed
Ct, O’Loughlin J, 23 January 1998)
Datadot Technology Ltd v Alpha
Microtech Pty Ltd [2003] FCA 1449
[FCR62.19.20] Costs to be allowed
Windsor v Sydney Medical Service CoOperative Ltd (No 3) [2010] FCA 364
[FCR62.45.20] Certification of
Taxation – r 45(3)
Luck v University of Southern
Queensland (2009) 176 FCR 268; 109
ALD 66; [2009] FCAFC 73
[FCR80.3.20] The pro bono appeal;
[FCR80.4.30] A referral
[FCR62.36A.20] An awarded
judgment – not less than $100,000
Evidence Act
New commentary
New commentary includes:
[EA32.20] General;
[EA102.20] Evidence as to credibility;
[EA128.20] The privilege against self-incrimination;
[EA128.30] Liable to a civil penalty – s 128(1)(b);
[EA128.90] The court may require – s 128(4);
[EA128.160] A fact in issue – s 128(10)(a);
[EA131.70] Liability for costs – s 131(2)(h);
[EA140.40] Matters to be taken into account – s 140(2).
New cases
New cases include:
Case name
Topic
Lindsay-Owen v Lake [2000] NSWSC
1046
Refrigerated Express Lines (A/asia) Pty
Ltd v Australian Meat & Livestock
Corporation (1979) 42 FLR 204;
Pyneboard Pty Ltd v Trade Practices
Commission (1983) 152 CLR 328; 57
ALJR 236; 45 ALR 609; [1983] HCA 9
Lifetime Investments
Pty Ltd v
Commercial
(Worldwide)
Financial
Services Pty Ltd [2006] FCA 696
[EA32.20] General
Cornwell v The Queen (2007) 231 CLR
260; 81 ALJR 840; 169 A Crim R 89; 234
ALR 51; [2007] HCA 12
[EA128.160] A fact in issue –
s 128(10)(a)
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[EA128.30] Liable to a civil penalty –
s 128(1)(b)
[EA128.90] The court may require –
s 128(4)
Case name
Topic
Pinot Nominees Pty Ltd v Federal
Commissioner of Taxation (2009) 181
FCR 392; [2009] FCA 1508
Australian Securities & Investments
Commission v Fortescue Metals Group
Ltd (No 5) (2009) 264 ALR 201; [2009]
FCA 1586
[EA131.70] Liability for costs –
s 131(2)(h)
[EA140.40] Matters to be taken into
account – s 140(2)
Federal Proceedings (Costs) Act
New commentary
New commentary includes:
[FPA10.50] Proceedings discontinued or adjourned – s 10(3)(a).
New cases
New cases include:
Case name
Topic
Marsh v Marsh (2009) 234 FLR 357;
[2009] FMCAfam 1160
[FPA10.50] Proceedings
discontinued or adjourned –
s 10(3)(a)
Acts Interpretation Act
New commentary
New commentary includes:
[AIA15C.20] Deemed jurisdiction;
[AIA22.30] Person.
New cases
New cases include:
Case name
Topic
The Melbourne Steamship Co Ltd v
Moorehead (1912) 15 CLR 333; 18 ALR
533
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[AIA22.30] Person
AMENDED LEGISLATION
The Federal Court of Australia Act 1976 (Cth) is amended by the Trade
Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
(Act 103 of 2010), commencing 1 January 2011:

Sections 23AB “Application of Division”, 23CD “Pre-trial and ongoing
disclosure”, 32B “Interrelation” and 58DB “Granting bail” are amended;

Section 33ZH “Special provision relating to claims under Part VI of the
Competition and Consumer Act 2010 etc.” is substituted.
The Federal Court Rules are amended by the Federal Court Amendment Rules
2010 (No 2) (SLI 338 of 2010), commencing 1 January 2011:

Order 62 r 9 “Liability of lawyer, O 78 rr 20A “Referral of questions
about whether a party should cease to be a party”, 20B “Preparation of
referral”, 20C “Setting down for hearing”, 21A “Report about breaches
of good faith requirement”, O 80 r 4 “Referral to a lawyer”, Sch 1 Form
15B “Certificate of lawyer” and Sch 2 “Scale of costs for work done and
services performed” are amended;

Order 78 rr 16 “Question to be special case”, 17 “Special case to be
prepared — referral by mediator”, 18 “Setting down for hearing —
referral by mediator”, 19 “Party having carriage of proceeding — referral
by mediator” and O 78 Div 3A “Referral to court of questions under
section 94J of Native Title Act” and O 78 Div 4 “Mediation” headings are
substituted;

Order 78 rr 17A “Special case to be prepared — referral by NNTT”, 18A
“Setting down for hearing — referral by NNTT” and 19A “Party having
carriage of proceeding — referral by NNTT” are inserted;

Order 78 r 21 “Cessation of mediation” is repealed.
The Evidence and Procedure (New Zealand) Act 1994 (Cth) is amended by the
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
(Act 103 of 2010), commencing 1 January 2011:

Section 14 “Setting aside subpoenas” is amended.
The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) is amended by the
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
(Act 103 of 2010), commencing 1 January 2011:

Sections 3 “Interpretation and application”, 4 “Additional jurisdiction of
certain Courts” and 10 “Transfer of matters arising under the Australian
Consumer Law” are amended.
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CROSS-REFERENCES INSERTED
Cross-references to related provisions of the Federal Court of Australia
Regulations 2004, Federal Court Rules and Federal Court (Bankruptcy) Rules
2005 have been inserted immediately following certain relevant provisions of
the Federal Court of Australia Act 1976. These cross-references provide the
reader with a valuable resource, enabling the quick identification of other
legislative material relating to a particular provision. For ease of reference, a
Table of Related Provisions has also been inserted immediately following the
Table of Provisions at the beginning of the Act.
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