Federal Court Case Notes

Child born in Australia an ‘unauthorised maritime arrival’ for the purposes of the Migration Act 1958 (Cth)

Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178

Kenny, Edmonds & Rangiah JJ

18 December 2014

The appellant was a child who was born in Australia two months after his parents arrived on Christmas Island by boat where they were detained under the Migration Act 1958 (Cth) as ‘unlawful non-citizens’ and ‘unauthorised maritime arrivals’.  When an application was made for a protection visa for the appellant, the Minister decided the application was invalid because the appellant was an ‘unauthorised maritime arrival’ for the purpose of s 46A of the Migration Act 1958.  The Federal Circuit Court dismissed the appellant’s application for judicial review of that decision.  An appeal was brought on the ground that the Judge had erred in finding that the appellant was an ‘unauthorised maritime arrival’ within the meaning of the term in section 5AA of the Migration Act 1958.

Section 5AA of the Migration Act 1958  provided that, for the purposes of the Act, a person was an ‘unauthorised maritime arrival’ if ‘the person entered Australia by sea …’  The same section provided that a person entered Australia by sea if ‘the person entered the migration zone except on an aircraft that landed in the migration zone …’ [extracts only]

The appellant argued that a child born in Australia could not be said to have ‘entered Australia by sea’ for the purposes of section 5AA and that section 10 of the Migration Act 1958 was irrelevant to the construction of that expression.  Section 10 provided that a child who was born in the migration zone and was a non-citizen when born shall be taken to have entered Australia when he or she was born.

Held: Section 10 was relevant to the operation of s 5AA of the Migration Act 1958 and deemed a non-citizen child to have entered Australia upon birth.  As the appellant child did not enter Australia on an aircraft that landed in the migration zone the child was taken to have entered Australia by sea and was therefore an ‘unauthorised maritime arrival’ whose application for a protection visa was invalid.

The appeal was dismissed.

Workplace Harassment and Discrimination Policy formed part of employment contract and departure from Policy amounted to breach of contract

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC  177, (2014) 315 ALR 243

Allsop CJ, Rares & McKerracher JJ

22 December 2014

The appellant claimed her employer had breached her contract of employment by failing to comply with the company’s Workplace Harassment and Discrimination Policy when investigating a complaint. The primary judge held that the Policy did not constitute part of the contract of employment and, even if it did, the departure was not significant enough to constitute a breach of the Policy or the contract. 

Held: The Court found the Policy did form part of the employment contract.  Relevant considerations included: the fact the language used made it clear there was an expectation by the company that there would be mutual obligations; although aspects of the Policy were merely aspirational the specific obligations considered in the case were clearly ascertainable and capable of precise identification; a copy of the Policy was provided to the employee with the offer of employment and the employee was required to sign it; the Policy was the subject of an induction program and was reinforced on an ongoing basis; and the Policy related to fundamental conditions of employment including compliance with external statutory obligations, matters the parties would be expected to regard as contractually binding.

The Court also found that the standard of investigation applicable under the Policy had not been met during the handling of the appellant’s complaint.  The Policy, and therefore the contract, had been breached.

The appeal was allowed.

Refusal of application by Apple Inc. to register the words APP STORE as a trade mark

Apple Inc. v Registrar of Trade Marks [2014] FCA 1304, (2014) 109 IPR 187

Yates J

3 December 2014

Apple Inc. appealed a decision of the Registrar of Trade Marks rejecting an application to register the words APP STORE as a trade mark in respect of certain services because the mark was not capable of distinguishing Apple’s services from those of other traders. The appeal was conducted as a hearing de novo.

Held: The relevant date for assessing registrability under section 41 of the Trade Marks Act 1995 (Cth) was the date the application was filed.  The mark APP STORE was not to any extent inherently adapted to distinguish Apple’s services from those of other persons. At the time the application was filed the word ‘app’ had a well-established and well-understood meaning and the meaning of the word ‘store’ already extended beyond the traditional notion of a physical store.  Members of the public would have understood APP STORE to mean a trade channel through which application software could be acquired.

Apple also failed to establish that the extent to which it had used the mark before the filing date meant the mark did in fact distinguish the designated services as being Apple’s services. 

The mark was therefore not capable of distinguishing Apple’s services from the services of other persons and the application for registration had to be rejected under section 41 of the Trade Marks Act 1995 (Cth). 

The appeal was dismissed.

Settlement approved in representative proceedings brought against Bank of Queensland by clients of Storm Financial

Lee v Bank of Queensland Limited [2014] FCA 1376

Collier J

16 December 2014

Court approval was sought for the settlement of a representative proceeding brought against the Bank of Queensland Ltd by clients of Storm Financial Ltd who suffered financial loss when they borrowed from the Bank to invest in Storm products prior to Storm’s collapse.

Held:  The Court was satisfied that the settlement sum, settlement scheme and costs claimed by the applicants were fair and reasonable and approved the settlement.  Factors considered included: the fact the litigation was still at a fairly early stage and the likelihood that any trial would be lengthy and complex; the fact the case was being funded by group members and the possibility they may lose the ability to continue to fund the litigation; the fact the overwhelming majority of group members who gave a view about the terms of the proposed settlement supported it; the fact ASIC did not oppose the settlement and was prepared to provide data that would be used to calculate compensation to group members; the method for calculating losses of group members was considered to be fair and reasonable; and the fact the applicants and the Bank were represented by experienced solicitors and Counsel and there was nothing to suggest negotiations were conducted other than with proper care and skill, that the applicants were in any way unfairly disadvantaged in negotiations, or that the settlement sum did not reflect a fair estimate of the applicants’ prospect of success were the case to proceed to trial.

The Court also approved payment by the Bank of a lead applicant payment separate from the settlement sum.  This was considered fair and reasonable given the time the applicants had invested in the proceedings and the risks they had assumed for the benefit of the group members as a whole.

Applications for the recognition of native title in Brisbane and surrounding areas

Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15

Jessup J

27 January 2015

Applications were made on behalf of the Turrbal People and the Yagara/Yugarapul People seeking a first determination of native title in relation to land and waters in a claim area that included Brisbane and surrounding areas.  The proceedings had been consolidated in 2013 and there was some overlap in the claim areas.  The Court considered the question ‘but for any question of extinguishment of native title does native title exist in relation to any and what land and waters of the claim area?’

Held: Members of the claim groups did not possess communal, group or individual rights and interests in relation to any land or waters in the claim area.  There had not been a continued, substantially uninterrupted, normative system under which the traditional laws and customs that would sustain native title rights and interests were acknowledged and observed.  No member of either claim group would be recognised as possessing those rights and interests under the traditional laws and customs that existed at sovereignty and immediately thereafter.

A final determination of native title is still to be made.

Adverse action taken by union for the reason of employee’s political opinion

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27

Mortimer J

30 January 2015

The applicant claimed his employer, the Construction, Mining and Energy Union, had taken adverse action against him because of his political opinion contravening section 351 of the Fair Work Act 2009 (Cth).  The actions included directing him to attend a meeting interstate, redeploying him from Western Australia to Queensland, suspending him, and finally terminating his employment.  The applicant claimed the actions were taken because of his involvement with the Socialist Alliance.

The respondent union contended that, even if the actions were found to be adverse actions, the applicant’s political opinion was not the reason for the actions.  The union also contended that membership of the Socialist Alliance did not constitute a ‘political opinion’ for the purposes of section 351 of the Fair Work Act 2009.

Held:  Actions to redeploy, suspend and dismiss the applicant were adverse actions under the Fair Work Act 2009. The applicant’s membership of, and involvement in the activities of, a political party (the Socialist Alliance) constituted the holding and manifestation of a political opinion within the meaning of that phrase in section 351 of the Fair Work Act 2009.  The applicant’s political opinion was a substantive and operative factor in each of the adverse actions taken against him.