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Lastest Judgments from the Federal Court

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    BANKRUPTCY AND INSOLVENCY - Where applicant claimed bankruptcy notice was invalid pursuant to s 41(5) of the Bankruptcy Act 1966 (Cth) - Where applicant notified the respondent within the time permitted that she disputed the validity of the bankruptcy notice on the grounds that it was overstated - Where respondent had not accounted for the amount paid for levies in accordance with the applicant's instructions - Whether the bankruptcy notice was overstated - Ground not made out. BANKRUPTCY AND INSOLVENCY - Where applicant claimed Court should go behind the judgment and set aside the bankruptcy notice - Where applicant did not appeal the judgment - Where applicant was unrepresented - Where judgment was obtained after a contested hearing - Whether the Court should exercise its discretion to go behind the judgment - Ground not made out. BANKRUPTCY AND INSOLVENCY - Where applicant claimed that she had a cross-claim, set-off or cross demand - Where applicant did not explain why the claim was not raised in the proceeding that resulted in the judgment to which the bankruptcy relates in her application to this Court - Whether applicant had counter-claim, set-off or cross-claim pursuant to ss 40(1)(g) and 41(7) of the Bankruptcy Act 1966 (Cth) that was equal to or exceeds debt claimed in bankruptcy notice - Ground not made out. BANKRUPTCY AND INSOLVENCY – Where applicant claimed that the issue and service of the bankruptcy notice constituted an abuse of process – Whether bankruptcy notice was an abuse of process – Whether the bankruptcy notice was issued for a collateral purpose or to place undue pressure on the applicant – Ground not made out. BANKRUPTCY AND INSOLVENCY – Whether the registrar’s order discharging the extension of time for compliance with the bankruptcy notice should be set aside

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    EVIDENCE - an Applicant recorded a meeting between himself and two Respondents - admissibility of that recording and a transcript of the recording at trial - whether recording was made in contravention of law - whether Court should permit the reception of the evidence under s 138 of the Evidence Act 1995 (Cth) - evidence ruled inadmissible.

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    BANKRUPTCY - appeal from the making of a sequestration order - matter involving significant litigious history spanning numerous courts - whether the primary judge erred in failing to disqualify himself, failing to go behind the judgment and failing to find that there was other sufficient cause not to make a sequestration order - consideration of whether the failure by the respondent to disclose professional indemnity insurance during proceedings in the state court meant that the costs order relied upon for the bankruptcy notice was invalid - whether the primary judge erred in rejecting an argument that there had been a breach of the indemnity principle in the process of finding that the underlying debt was still owing - no appellable error demonstrated and appeal dismissed

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    CONSUMER LAW - application pursuant to s 234 of the Australian Consumer Law for an interim injunction enjoining the respondent from publishing or broadcasting a television commercial and conducting an in-store promotion both featuring comparative advertising - where the issue of whether a prima facie case exists is determinative and where application will likely resolve the substantive proceeding - no sufficient prima facie case established - application dismissed with costs

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    INCOME TAX - capital gains tax - roll over relief - whether Family Court order resulted in a change of ownership within the meaning of s 104-10 of the Income Tax Assessment Act 1997 (Cth) (the ITAA) - whether Family Court order constituted CGT event A1 as defined in 104-5 of the ITAA - whether the effect of Family Court order was such that the roll over relief provisions contained in Subdivision 126-A of the ITAA were engaged - whether primary judge erred in holding that a change of ownership had occurred as a result of the deeming provision contained in s 103-10 of the ITAA. EQUITY - unnumbered and uncertificated shares in public company - creation of trust over part of shareholding by Family Court order - beneficial ownership - requirement for certainty of subject of trust - shares as a fungible asset

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    COSTS - costs following the event - responding party successful on infringement claim and other party successful on cross-claim upholding validity of patent - incidence of costs - whether to consider claim and cross-claim globally - whether the relevant event is the successful defence of infringement claim - apportioning costs - offers of compromise - conduct prior to and in litigation. COSTS - Patents - Certificate under s 19(2) of the Patents Act 1990 (Cth) - operation of s 19(3) direction - different ground of attack on invalidity of Patent than previous proceeding - whether Court should exercise discretion under s 19(3). PATENTS - s 19 of the Patents Act 1990 (Cth) - costs - direction under s 19(3) - exercise of discretion. PRACTICE AND PROCEDURE - overarching purpose - case management - genuine steps to resolve disputes - court's duty to determine matter - successful party not to be punished or deprived of costs in pursuing a court determination

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    MIGRATION - application for extension of time - whether amended proposed grounds of appeal has reasonable prospects of success – proposed questions to be raised on appeal before the Federal Court were not raised before the Administrative Appeals Tribunal – application dismissed

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    MIGRATION - the applicant was a translator for Allied forces during operations in Afghanistan - the applicant applied for a safe haven visa - the applicant submitted that his work in support of Allied forces in Afghanistan was a relevant consideration in favour of granting his application for a safe haven visa - whether the Administrative Appeals Tribunal (the Tribunal) gave proper, genuine and realistic consideration to the merits of the applicant's case - whether the Tribunal misapprehended the import of DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - whether Tribunal proceedings involved denial of procedural fairness - whether usual rules of procedural fairness in Tribunal excluded by s 422B of Migration Act 1958 (Cth) - whether s 424A 'deals with' the Appellant's procedural fairness claim - where Tribunal failed to inform Appellant of further steps to be taken to verify documents - where Tribunal found documents to be unreliable

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - whether denial of procedural fairness before Tribunal - whether Appellant put on notice by Tribunal of adverse findings - where delegate and Tribunal reached the same conclusion on different bases

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    PRACTICE AND PROCEDURE - application for leave to appeal interlocutory judgment of Federal Circuit Court - whether leave to appeal should be granted - whether decision of primary judge attended by sufficient doubt to warrant it being reconsidered by an appellate court MIGRATION - judicial review - Partner (Class UK) visa - where application for judicial review dismissed by primary judge as raising no arguable case for relief - failure to consider claim - failure to engage in "active intellectual process" - failure to make an obvious enquiry, the existence of which could be easily ascertained

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    INTELLECTUAL PROPERTY - consideration of an application for leave to appeal and an appeal under s 60(4) of the Patents Act 1990 (Cth) (the "Act") from a decision of the Commissioner's delegate rejecting all grounds of opposition - consideration of questions of construction of the Patent Application including the claims and the specification - consideration of the principles of construction INTELLECTUAL PROPERTY - consideration of the ground of want of novelty - consideration of whether the claims as construed are anticipated by a prior published product. INTELLECTUAL PROPERTY - consideration of the historical development in Australia of the statutory formulation contained in s 18(1)(c) of the Act that an invention is a patentable invention for the purposes of a standard patent "if the invention, so far as claimed in any claim, is useful" - consideration on the question of utility of earlier formulations engaging the grounds on which a patent might be repealed by the writ of scire facias - consideration of The Patents, Designs and Trade Marks Act 1883 (UK), the Report of the United Kingdom Board of Trade (the "Sargant Committee Report") of 1931, the Patents and Designs Act 1907-1932 (UK), the Report of the United Kingdom Board of Trade (the "Swan Committee Report") of 1947, the Patents Act 1949 (UK), the Report of 1952 of the "Dean Committee" established by the Commonwealth Attorney-General (which led to the Patents Bill 1952 (Cth)), and the Patents Act 1952 (Cth). INTELLECTUAL PROPERTY - consideration of the question of utility of whether a failure to attain an element of a composite promise comprising two or more elements renders the invention, so far as claimed in any claim, inutile - consideration of the authorities on that question.

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    COSTS - where appeal dismissed in circumstances where appellant Minister succeeded on one ground - notice of contention grounds either failed or were unnecessary to decide - appropriate costs orders both in the Full Court and in the Federal Circuit Court of Australia

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    PRACTICE AND PROCEDURE - application to transfer venue of mediation - application to vary orders referring matter to mediation in Sydney - application for adjournment of mediation - whether Registrar, acting as mediator, would be "embarrassed" by evidence - whether mediator required to form any view in mediation

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    PRACTICE AND PROCEDURE - application within a proceeding - where an injunction restraining the use of a number of documents is sought - where an order for delivery up of documents is sought EQUITY - consideration of the equitable duty of confidence - whether documents containing legal advice are confidential - whether documents constitute private communications - whether documents have been disclosed - consideration of a director's common law right to inspect company documents - consideration of a director's right to inspect documents under s 198F of the Corporations Act 2001 (Cth) - application of the four elements of a claim in equity for breach of confidence outlined in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 COSTS - where an order for costs of an unsuccessful application for an interlocutory injunction is sought - power to order costs against a non-party in s 43 of the Federal Court of Australia Act 1976 (Cth) - whether a non-party has been actively involved in the conduct of litigation and will benefit from it if the litigation is successful

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    MIGRATION - protection (class XA) visa - appellant cavilling with factual findings - credibility findings matters for the Tribunal - no appellable error

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    MIGRATION - appeal from a dismissal of a judicial review application by the Federal Circuit Court of Australia of a decision refusing to grant a protection visa under the Migration Act 1958 (Cth) - leave to rely on grounds of appeal not in issue before the primary Judge

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    MIGRATION - appeal from a dismissal of a judicial review application by the Federal Circuit Court of Australia of a decision refusing to grant a protection visa under the Migration Act 1958 (Cth) - leave to rely on grounds of appeal not in issue before the primary Judge

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    MIGRATION - appeal from a dismissal of a judicial review application by the Federal Circuit Court of Australia of a decision refusing to grant a protection visa under the Migration Act 1958 (Cth) - leave to rely on grounds of appeal not in issue before the primary Judge

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    INDUSTRIAL LAW - principles of construction of enterprise agreements - relevance of history of negotiations to the interpretation of an enterprise agreement - permissive and obligatory language - whether provision of enterprise agreement capable of being contravened -whether contravention within meaning of s 50 of the Fair Work Act 2009 (Cth)

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