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Lastest Judgments from the Federal Court

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    INDUSTRIAL LAW - appeal from decision of the Federal Circuit Court of Australia in relation to underpayments under an award - where the respondent was a qualified commercial helicopter pilot who was required in her employment to perform mixed duties involving business administration and occasionally flying - whether the primary judge erred in finding that the Air Pilots Award 2010 ("AP Award") was the most appropriate award -principle of "major and substantial" employment supports the finding that classification as a helicopter pilot under the AP Award was appropriate - the primary judge did not err APPEAL AND NEW TRIAL -whether leave should be granted to make a new argument that the Airline Operations - Ground Staff Award 2010 was the most appropriate award - where the argument might have been met by additional evidence below, leave to press new argument on appeal refused SUPERANNUATION - where the primary judge ordered that a shortfall in superannuation payments be paid as compensation direct to the respondent - the primary judge erred by not taking account of the effect of the legislative scheme for the payment of superannuation

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    PRACTICE AND PROCEDURE - application for leave to appeal in accordance with r 35.01 of the Federal Court Rules 2011 - application refused as insufficient doubt to warrant reconsideration of decision, no substantial injustice occasioned and no final determination of rights

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    MIGRATION - whether to grant leave to amend notice of appeal from decision of Federal Circuit Court of Australia - leave denied as proposed grounds of appeal lacking in merit - appeal dismissed

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    MIGRATION - application for extension of time to file notice of appeal from Federal Circuit Court of Australia judgment - application denied as proposed appeal lacked merit

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    PRACTICE AND PROCEDURE - application for extension of time for leave to appeal from a decision of the Federal Circuit Court of Australia - where the primary judge dismissed the matter for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth) Held: appeal dismissed

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    PRACTICE AND PROCEDURE - appeal from the Federal Circuit Court - where primary judge dismissed the proceeding for non-appearance at hearing - where no application made to have the decision of the primary judge set aside - application by respondent for summary judgment - no prospects of success

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    PRACTICE AND PROCEDURE - application for leave to appeal against an interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) - where primary judge dismissed an application for non-appearance - where applicant's submissions not adequately supported by evidence - where judgment of primary judge not attended by sufficient doubt to warrant it being reconsidered on appeal

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    MIGRATION - where Federal Circuit Court dismissed application for judicial review of a decision of the Immigration Assessment Authority - where appellant seeks to substitute new appeal grounds - Immigration Assessment Authority failed to consider aspect of appellant's claim to be a member of a particular social group - whether outcome would have been the same in any event - appeal allowed - decision quashed and matter remitted

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    PRACTICE AND PROCEDURE - application for an extension of time - where primary judge dismissed proceedings for non-compliance with orders - Relevant principles - where there is insufficient medical evidence to support a finding that the applicant was unable to prepare or file court documents - where there is no adequate explanation for the delay in lodging the application for an extension of time - were the proposed appeal is without merit

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    COSTS - whether applicant should pay second respondent's costs on an indemnity or party/party basis

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    MIGRATION - Appeal from the decision of the Federal Circuit Court of Australia dismissing an application to quash the decision of the Immigration Assessment Authority; Authority not satisfied that the appellant faced real harm on returning to Sri Lanka; judicial review; alleged that the Authority breached s 473DC of the Migration Act 1958 (Cth); discretionary power under s473DC of the Migration Act; information regarding appellant's relocation in Sri Lanka

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    MIGRATION - application for an extension of time to appeal a decision of the Federal Circuit Court of Australia - where the Immigration Assessment Authority affirmed decision to refuse to grant a Temporary Protection (Subclass 785) visa - whether there is sufficient merit to grant an extension of time - whether the Tribunal's decision was not logical or rational - whether the Tribunal afforded procedural fairness to the applicant - application dismissed

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    MIGRATION - application for extension of time and leave to appeal from decision of Federal Circuit Court - whether legal error identified - prospects of success

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    NATIVE TITLE - where three applicant claim groups made competing and entirely overlapping native title claims over the same area - where each of the applicant claim groups had already obtained consent determinations over areas adjoining the claim area - where the primary judge dismissed the three competing claims - whether native title determinations should have been made in respect of any of the claims - whether any of the appellants, on the evidence, had maintained a substantially uninterrupted connection with the claim area since sovereignty under their traditional laws and customs - consideration of the principles applying to the requisite connection inquiry - consideration of the fundamental matters determined by a determination of native title under the Native Title Act 1993 (Cth) - whether the primary judge erred in the manner in which he gave effect to the prior consent determinations - whether the primary judge erred in not drawing an inference in favour of any of the appellants APPEALS - where the errors alleged by the appellants related to factual findings - consideration of the role of an appeal court - consideration of the advantage of a trial judge in making factual findings - whether the primary judge's findings were wrong by "incontrovertible facts or uncontested testimony", or were "glaringly improbable" or "contrary to compelling inferences" Held: all appeals dismissed

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    ADMINISTRATIVE LAW - judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the National Archives of Australia - where the applicant sought access under the Archives Act 1983 (Cth) (the Act) to a bundle of correspondence, referred to as AA1984/609, between the then Governor-General of Australia, Sir John Kerr, and The Queen or The Queen's Private Secretary - whether AA1984/609 was a Commonwealth record such that public access to it is governed by Div 3 of Pt V of the Act - whether any document in AA1984/609 is "the property" "of the Commonwealth" or of "the official establishment of the Governor-General" - whether s 6(2) of the Act applies to AA1984/609, with access governed by the terms of the instrument of deposit - whether the presumption of regularity applies. CONSTITUTIONAL LAW - consideration of the relationship between the Governor-General and the Commonwealth under the Constitution - consideration of the roles of, and the relationship and communication between, The Queen and the Governor-General. Held: application dismissed.

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    MIGRATION – Appeal from the decision of the Federal Circuit Court dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal affirming decision of the Minister to refuse to grant a Protection Class XSA Visa; claim for protection under s 36(2)(a) of the Migration Act 1958 (Cth); whether the Tribunal erred in finding that the element of intention in “significant harm” was not satisfied; obligations under s 424A and s 424AA of the Migration Act

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    MIGRATION – Appeal from decision of Federal Circuit Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to grant a Protection Class XA Visa; protection claims made under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth)

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