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Lastest Judgments from the Federal Court

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    MIGRATION - application for leave to appeal a decision of the Federal Circuit Court of Australia - the Federal Circuit Court found no jurisdictional error in the decision of the Administrative Appeal Tribunal- application for further adjournment - whether the Tribunal failed to consider a relevant consideration - application dismissed

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    BANKRUPTCY & INSOLVENCY - whether to grant leave to appeal - whether Federal Circuit Court of Australia judgment attended by sufficient doubt as to warrant its reconsideration - leave to appeal denied, appeal dismissed

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    PRACTICE AND PROCEDURE - whether primary judge erred in dismissing application to reopen case after judgment reserved - consideration of overarching purpose of civil practice and procedure principles in Pt VB of Federal Court of Australia Act 1976 (Cth) - held no error demonstrated in primary judge's reasons - no exceptional circumstances or serious injustice demonstrated - no acceptable explanation for failure to raise arguments at the hearing PRACTICE AND PROCEDURE - whether primary judge erred in dismissing applications for judicial review of both decision of Deputy President and decision of Full Bench of the Fair Work Commission to refuse permission to appeal under ss 400(2) and 604(2) of Fair Work Act 2009 (Cth) - whether Full Bench or Deputy President's reasons disclosed failure to consider applicant's submission on particular issue - held no jurisdictional error in Full Bench or Deputy President's reasons PRACTICE AND PROCEDURE - whether primary judge erred in dismissing application for an extension of time to file application seeking relief under Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11 or Judiciary Act 1903 (Cth) s 39B - where primary judge found no merit in proposed case and no acceptable explanation for delay and availability of and use of alternative avenues of review by applicant - held no error demonstrated in primary judge's reasons

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - where a fraudulent IELTS test report was provided to the Department - where the appellant claimed that his brother-in-law had altered the appellant's original IELTS test report without the appellant's authority, knowledge or complicity, and gave the altered IELTS test report to a migration agent who then provided it to the Department - whether the altered IELTS test report was a "bogus document" or "information that is false or misleading in a material particular" for the purposes of Public Interest Criterion 4020 (PIC 4020) - whether in these circumstances the appellant had "given, or caused to be given" to the Department a bogus document, or information that is false or misleading in a material particular, such that PIC 4020 was not satisfied - whether the primary judge erred in finding that the AAT did not commit jurisdictional error by misconstruing or misapplying PIC 4020 - whether the primary judge erred in finding that the AAT did not commit jurisdictional error by concluding that PIC 4020 was not satisfied in these circumstances - appeal dismissed, with costs

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    MIGRATION - decision made by the Minister personally not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth), a decision made under s 501(3A) where the visa holder did not pass the character test - whether there was a judicially reviewable error in the Minister concluding that he was not satisfied that there was another reason why the original decision should be revoked - Held: application dismissed

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    PRACTICE AND PROCEDURE - application for approval of infant settlement pursuant to r 9.70 of the Federal Court Rules 2011 - whether settlement in best interests of infant - whether settlement sum should be held on trust by infant's mother, and subject to what terms - whether to make confidentiality orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) protecting infant's personal information and details of settlement

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    NATIVE TITLE - applications for determination of native title - determination of a separate question - who are the persons holding native title rights and interests in the application areas - challenge by Indigenous respondents to whether certain apical ancestors held native title rights at sovereignty NATIVE TITLE - whether language group identity is determinative to rights to land - communities living along borders speaking multiple languages - language group identity is not determinative of rights to land NATIVE TITLE - traditional laws and customs governing the acquisition of native title rights to land by descent - whether rights to land are acquired through cognatic descent or patrilineal descent NATIVE TITLE - whether community recognition is requirement for the acquisition of rights to land under traditional laws and customs NATIVE TITLE - whether the Indigenous respondents by contesting the applicant's claim established that they are not part of the society - whether the Court should exclude the Indigenous respondents as members of the land holding group NATIVE TITLE - whether the Indigenous respondents should be removed as respondents to the application NATIVE TITLE - evidence of traditional laws and customs in native title proceedings - difficulty of proof - conflicts between archival and contemporary oral evidence - approach of the Court to resolving such evidentiary conflicts

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    PRACTICE AND PROCEDURE - - "AOD appeal" - taxation appeal - proper place for filing of notice of appeal - transfer of proceedings - interests of justice - application for transfer to proper place allowed.

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    PRACTICE AND PROCEDURE - declaratory relief - whether declaratory relief should be granted - appropriate form of declaration - declaration made COSTS - whether costs should be awarded regarding submissions on declaratory relief - obligation on parties to attempt to reach agreement - parties to bear their own costs regarding submissions on declaratory relief

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    PATENTS - whether Patents are invalid - novelty - prior art - self-anticipation - innovative step - disclosure - support - manner of manufacture - secret use - where Patents are method and apparatus for displaying information CONTRACTS - whether licence granted over Patents is exclusive licence - whether Licence Deed is a sham STATUTES - Patents Act 1990 (Cth) s 40(2)(a) - whether s 40(2)(a) contains requirement of making plain the nature of invention to persons of reasonably competent knowledge of the subject - where s 40(2)(a) had been amended by Intellectual Property Laws (Raising the Bar) Act 2012 (Cth)

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    BANKRUPTCY - disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) for onerous covenants - application for order under s 133(9) vesting property in mortgagee subject to conditions - whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy - historical and doctrinal basis of escheat - consistency of doctrine of escheat with Torrens title land, statutory powers of disclaimer and constitutional context - effect of disclaimer occurring under Commonwealth law - whether land vests in the Crown in right of the Commonwealth or the State - better view may be that land does not escheat upon disclaimer, rather the legal title is held by the Crown on trust for statutory purposes until the Court makes an order vesting it pursuant to s 133(9). REAL PROPERTY - disclaimer of real property for onerous covenants - Torrens title - whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy - historical and doctrinal basis of escheat. MORTGAGES - disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) for onerous covenants - position of registered mortgagee - realisation of mortgagee's security to repay debt - whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy - mortgagee's right to apply for order vesting fee simple in the property the subject of the mortgage in it following disclaimer - appropriate terms and conditions of vesting order

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    BANKRUPTCY AND INSOLVENCY - application to terminate the winding up of a company - notice of winding up application not received due to failure to update business address - debt subsequently paid - application not opposed by liquidator or creditor - application granted

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    CORPORATIONS - winding up - statutory demand - service - statutory demand and accompanying affidavit sent by post to company's accountant - application to set aside order of the Registrar to wind up the company and appoint liquidators due to failure of service of the statutory demand - s 109X of the Corporations Act 2001 (Cth) EVIDENCE - service of documents - whether for the purposes of satisfying service requirements documents sent to the company were delivered - presumptions as to effective service - rebuttal of presumption as to service - evidence suff?cient to raise doubt about presumption of receipt - s 160 of the Evidence Act 1995 (Cth) - s 29 of the Acts Interpretation Act 1901 (Cth)

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    MIGRATION - the applicant's special category visa was cancelled on character grounds - the Administrative Appeals Tribunal (the Tribunal) revoked the cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth) - the Minister for Immigration and Border Protection (the Minister) acting under s 501BA(2), set aside the Tribunal's decision and cancelled the applicant's special category visa - whether the Minister's decision was unreasonable - the Minister relied on the applicant's conduct which occurred after the date of the Tribunal's decision - whether the Minister was under a duty to make a reasonable inquiry to ascertain the facts comprising the applicant's conduct.

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    PRACTICE AND PROCEDURE - application for leave to appeal from grant of interlocutory injunction - whether substantial injustice would result if leave were refused, supposing the decision to be wrong - Held: Leave to appeal refused

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    COSTS - successful application by respondents to strike out certain paragraphs of the statement of claim - whether costs should be ordered on an indemnity basis

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    PRACTICE AND PROCEDURE - extension of time within which to seek leave to appeal - appeal from Federal Circuit Court decision refusing to reinstate proceedings summarily dismissed for default - capacity in which self-represented barrister appears and ability to recover costs for so appearing - whether power to grant default judgment under rule 13.03C, Federal Circuit Court Rules is not available on an application for review of a sequestration order made under s 104, Federal Circuit Court of Australia Act - whether primary judge required to satisfy himself that the sequestration order was properly made - whether the applicant denied procedural fairness in refusal to grant adjournment - where the proposed grounds have no reasonable prospects of success - extension of time dismissed

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    CORPORATIONS - Application by liquidator for directions pursuant to s 511 of the Corporations Act 2001 (Cth) - Where insolvent company was a corporate trustee - Where sole purpose of the trust was to carry on business of insolvent company - Whether liquidator would be justified in treating the assets and liabilities of the company as the assets and liabilities of the trust - Whether liquidator should be paid his reasonable remuneration from trust assets - Whether appropriate for liquidator to distribute trust assets in a particular order

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    MIGRATION - application for Temporary Protection (subclass 785) visa - "fast track review" process in Part 7AA of Migration Act 1958 (Cth) - whether appellant's grounds of appeal engaged the appellate jurisdiction - failure to consider a claim - denial of procedural fairness - whether s 473DA of Migration Act 1958 (Cth) excludes the common law natural justice hearing rule from reviews under Part 7AA - failure to ask "relevant questions" - s 473GB certificate - appeal dismissed

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