Federal Court Case Notes
Victorian Charter of Human Rights and Responsibilities Act considered by the Federal Court
Kerrison v Melbourne City Council  FCAFC 130; (2014) 203 LGERA 169
Flick, Jagot and Mortimer JJ
3 October 2014
The appellant was involved in the Occupy Melbourne protests during which tents and banners were erected in Treasury Gardens and Flagstaff Gardens. The Melbourne City Council Activities Local Law 2009 (Vic) (Local Law) and the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations 1994 (Vic) (Regulations) prohibited camping and advertising in public places without a permit. During the protests the appellant, who did not have the necessary permits, was served with notices to comply under the Local Law and given oral directions under the Regulations. When she failed to comply, police removed a tent the appellant was ‘wearing’ at the time.
In the primary proceedings, the appellant as applicant argued, inter alia, that the Local Law and Regulations infringed the implied freedom of political communication under the Constitution and were incompatible with the rights to freedom of expression, peaceful assembly and freedom of association contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The primary judge rejected these arguments. This was the first time the Federal Court had considered the Charter.
The appellant appealed, narrowing the scope of the constitutional challenge to the enforcement provisions of the Local Law and Regulations as a consequence of the High Court’s decision in Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1.
Held: The enforcement provisions of the Local Law and Regulations did not impose any additional burden on the implied freedom of political communication than the substantive provisions, the validity of which were no longer challenged. Even if the enforcement provisions did impose an additional burden on the implied freedom of political communication that burden would be reasonably appropriate and adapted or proportionate to the accepted object of the provisions, being the protection, preservation and regulation of the equitable use of the Council’s gardens.
The making of the Local Laws was not an ‘act’ that could be found unlawful under section 38 of the Charter.
The Court also considered a claim that the primary judge omitted to deal with, namely that council officers had contravened section 38 of the Charter by acting in a way that was incompatible with a human right when removing the tent the appellant was ‘wearing.’ The Court found that, although the appellant was exercising her right to freedom of expression by ‘wearing’ the tent (as well as sleeping in it), the actions of the council officers in removing the tent were proportionate because they were directed at preserving and maintaining the gardens and their equitable use. Less restrictive means of enforcing the prohibition on camping in the gardens were not available as the appellant had been given notice that the tent would be removed and failed to take appropriate action. The Court proceeded on the basis that the term ‘incompatible’ in section 38(1) of the Charter was to be understood as a conclusion reached after the application of s 7(2) of the Charter to the limits said to have been placed on the exercise of the human right, noting that questions regarding the interaction of these two sections was before the Victorian Court of Appeal. As the merits of this claim were determined on appeal, the Court did not need to resolve the issue of which party should bear the onus of proof in relation to the proportionality of the actions, an issue that was also reserved before the Victorian Court of Appeal.
The appeal was dismissed.
Application to restrain solicitors acting against former client
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd  FCA 1065; (2014) 108 IPR 26
6 October 2014
The respondent sought an injunction restraining the applicant from retaining a firm of solicitors in a proceeding that included a challenge to the ownership of a trade mark on the basis that a predecessor firm had acted for the respondent when registering the trade mark. The application was based on: a claim there had been a breach of the duty of loyalty owed by the solicitors to the former client; and a claim that the proper administration of justice required that the solicitors be prevented from acting in order to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.
Held: Rejecting the view of Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, a duty of loyalty does not generally survive the termination of a solicitor’s retainer. If it did, it would only be imposed on the individual solicitors involved and the precise firm at the relevant time.
This was not a case where the proper administration of justice required the solicitors be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice. Key factors included: there was no real risk of the misuse of confidential information; the individual solicitors involved were quite different from those who had previously acted for the respondent; there was no evidence the respondent would have liked to re-engage the original solicitors; the work undertaken by the original firm did not appear to have involved any advice on the issue in dispute, namely, the ownership of the trade mark; there was no actual conflict of duty and duty or conflict of duty and interest; the ownership dispute concerning the trade mark was only one limited part of the proceeding; and to restrain the applicant from engaging the solicitors would have caused unnecessary cost and inconvenience.
The application was dismissed.
Claim of unlawful discrimination following refusal to release superannuation to pay for fertility treatment that was unlawful in Australia
Munday v Commonwealth of Australia (No 2)  FCA 1123
21 October 2014
The applicants (husband and wife) claimed the Commonwealth discriminated against them contrary to the Disability Discrimination Act 1992 (Cth) (DDA) in refusing to provide early access to superannuation funds on compassionate grounds under the Superannuation Industry (Supervision) Regulations 1994 (Cth). The wife had a genetic chromosomal disorder that prevented her from producing ova and sought access to her superannuation to pay for IVF treatment in the United States where she could legally purchase ova. The wife claimed she was suffering chronic depression caused by her infertility and the treatment would alleviate the depression. The Australian Prudential Regulatory Authority (APRA) rejected the applications for reasons that included the fact the proposed treatment would not be lawful in Australia, although the legislation did not explicitly include this requirement.
The applicants elected not to apply for judicial review but claimed inter alia, that the imposition of the requirement that the treatment be legal in Australia involved unlawful discrimination on the basis of infertility. They also claimed that failure by APRA to obtain independent legal advice before imposing the requirement involved a failure to make a reasonable adjustment under the DDA.
Held: Although it was questionable that the Commonwealth had a discretion to withhold the release of superannuation funds where the statutory criteria had been made out, there was no evidence that the policy to refuse applications where the funds were to be used for something that was unlawful in Australia was applied in a discriminatory way. Failure to seek legal advice about the requirement that the treatment be legal in Australia was not a failure to make a reasonable adjustment under the DDA.
The application was dismissed.
Validity of bankruptcy notice issued electronically
Curtis v Singtel Optus Pty Ltd  FCAFC 144
Mansfield, Gleeson, Beach JJ
30 October 2014
The Official Receiver issued a bankruptcy notice in respect of a judgment debt owed by the appellant debtor to the respondent. The bankruptcy notice was sent to the debtor as an attachment to an email that included two other attachments, namely, a covering letter and a copy of the final judgment. The appellant debtor appealed a decision of the Federal Circuit Court which had rejected the argument that the bankruptcy notice was invalid because the judgment was not attached to it at the time of issue and refused to set the notice aside.
Held: It is a requirement of the Bankruptcy Act 1966 (Cth) and Bankruptcy Regulations 1966 (Cth) that, at the time it is issued, a bankruptcy notice has a copy of the relevant final judgment or final order attached to it. This requirement is satisfied by the bankruptcy notice and the final judgment being attached to the same email, albeit as separate attachments. Alternatively, even if such an email does not strictly result in the final judgment being attached to the bankruptcy notice it does result in the two documents being delivered together. This amounts to substantial compliance which, under section 25C of the Acts Interpretation Act 1901 (Cth), is sufficient.
The appeal was dismissed.
Counsel ordered to personally pay costs ordered against client
Dahler v Australian Capital Territory (No 2)  FCA 1154
30 October 2014
The applicant had unsuccessfully sought leave to appeal interlocutory decisions of the Federal Circuit Court in an action for unfair dismissal brought under the Fair Work Act 2009 (Cth) (FW Act). The respondent sought costs under s 570(2)(a) of the FW Act on the basis the challenges to the primary judge’s decisions were vexatious and/or made without reasonable cause.
Held: The application for leave to appeal was brought without reasonable cause. The Court therefore had the power to make a costs order. The poor judgment of the applicant’s counsel caused the parties to incur the costs of the leave application without reasonable cause and amounted to misconduct for the purposes of rule 40.07 of the Federal Court Rules 2011 (Cth). The applicant’s counsel was therefore ordered to pay the costs the applicant was liable to pay the respondents. The order was made by the Court on its own initiative and did not require an application by the counsel’s client.
Relevance of indemnity agreement when assessing quantum of pecuniary penalty under TPA s 76E
Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (No 2)  FCA 1222
18 November 2014
In earlier proceedings the Australian Competition and Consumer Commission (ACCC) alleged Dateline had made 19 representations that contravened sections 52 and 53 of the Trade Practices Act 1974 (Cth) (the TPA). It was successful in proving four contraventions. The ACCC also alleged the managing director of Dateline was party to six of the alleged contraventions. It was successful in relation to only one.
The applicant, the ACCC, sought declarations that the respondents had engaged in conduct contravening the relevant provisions of the TPA. The ACCC also sought the imposition of pecuniary penalties against Dateline totalling $350,000 and orders that Dateline pay the whole of the ACCC’s costs of the penalty hearing and 25% of its costs of the remainder of the proceeding.
Held: Declarations were made specifically and succinctly identifying the relevant conduct and how and why it contravened the TPA. The declarations had utility as they served to vindicate the case brought by the ACCC and deter corporations from contravening the law. The fact certain declarations were not sought by the ACCC in its originating application did not prevent them being granted.
The Court ordered that Dateline pay a pecuniary penalty of $85,000. It found that, although Dateline’s conduct was not deliberate, the company was at fault for not enquiring about the accuracy of certain information. The penalty would act as a deterrent to Dateline and other corporations against similar conduct. A range of factors were considered when assessing the quantum of the penalty under section 76E of the TPA including the size and duration of publication of the contravening advertisements. The fact Dateline’s supplier had agreed to indemnify the company for 80% of any pecuniary penalty imposed was a relevant matter when determining a penalty of appropriate deterrent value. In this case, however, a higher penalty was not imposed by reason of the indemnity because the indemnity was granted in return for Dateline releasing the supplier from any claims it had against the supplier whose misleading representations had significantly contributed to Dateline’s contravening conduct.
As the ACCC achieved limited success in the proceeding, the Court considered it appropriate to apportion the costs between the parties. After concluding that the respondents should pay one-third of the ACCC’s costs and the ACCC should pay two-thirds of the respondents’ costs, the ACCC was ordered to pay one-third of the respondents’ costs of the proceeding.