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Lastest Judgments from the Federal Court

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    CONSTITUTIONAL LAW - federal jurisdiction - whether the amended originating application which referred two questions of law to the Court under s 55H of the Freedom of Information Act 1982 (Cth) (FOI Act) involves a "matter" within the meaning of Ch III of the Constitution FREEDOM OF INFORMATION - referral of two questions of law by the Australian Information Commissioner to the Court under s 55H of the FOI Act regarding the proper construction and application of s 55G of the FOI Act PRACTICE AND PROCEDURE - where respondents filed submitting notices - amicus curiae retained as contradictor Held: The Court lacks jurisdiction to determine the referred questions because there is no "matter"

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    CORPORATIONS - application by administrators for orders and directions - whether administrators can impose levy for return of consignor property - whether administrators hold equitable lien over consignor property - where administrators undertook full stocktake of consigned property held by auction house

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    PRACTICE AND PROCEDURE - application for judicial review of decision by the Australian Human Rights Commission not to inquire into the applicant's complaints -general principles governing summary dismissal under r 26.01, Federal Court Rules 2011 - where no requirement for proof of service of notices under s 79B, Judiciary Act 1903 (Cth), where no arguable constitutional issue raised - where applicant seeks review of issues litigated unsuccessfully before the Federal Circuit Court - whether proceedings constitute an abuse of process - where pleadings consist of baseless, unparticularised claims of legal error - whether failure to establish reasonable prospects of success - application for judicial review dismissed

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    PRACTICE AND PROCEDURE - corporate respondent - leave to appear otherwise than by solicitor - relevant factors - leave given until further order PRACTICE AND PROCEDURE - discovery documents claimed to be held by third party - directions to take reasonable steps to obtain

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    PRACTICE AND PROCEDURE – Security for costs – where application sought against corporate applicant but not individual applicant – whether there is reason to believe that the corporate applicant will be unable to pay costs if unsuccessful – where the claims of the corporate and natural applicants share a common factual substratum – whether causes of action of corporate applicant result in costs greater than would be incurred in meeting claims of the individual applicant – where incremental costs not established – whether the discretion to order security for costs should be exercised – whether undertaking given by the natural applicant is relevant to the exercise of the discretion to award security for costs

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    PRACTICE AND PROCEDURE -- representative proceeding -- product liability claim -- application for leave to amend originating application and statement of claim after the end of the hearing -- whether leave should be granted to add a claim for injunctive relief foreshadowed in closing address -- where injunction sought to prevent sale of respondents' medical devices without a detailed warning as to their alleged risks -- whether leave should be granted when Therapeutic Goods Administration was not a party -- whether leave should be granted when applicants alleged to have no interest in injunctive relief -- application for leave to amend statement of claim to alter description of the group to incorporate persons whose causes of action had arisen after commencement of proceeding and which might not yet have arisen until date of judgment or approval of settlement -- whether leave to amend at all should be granted -- whether in any event cut-off date appropriate -- whether leave should be granted where group members uncertain -- whether leave should also be granted to amend statement of claim to add further allegations of a failure to warn where evidence to support allegations had been received

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    PRACTICE AND PROCEDURE - referee - power of Court to refer whole or part of proceedings to a referee for inquiry and report - where appointment of referee will assist in determining claims of legal professional privilege over large quantity of documents - proceedings amenable to reference - order for the appointment of a referee to be made - consideration of terms of appropriate order

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    INDUSTRIAL LAW - alleged breaches of ss 501 and 502 of the Fair Work Act 2009 (Cth) - where the appellants suspected contraventions of the Workplace Health and Safety Act 2011 (Qld) and sought to enter the site - where the respondents refused entry - consideration of the requirements for a notice of entry under ss 117 and 119 of the Workplace Health and Safety Act 2011 (Qld) - whether a notice of entry must be completed prior to entry - whether failure to include the permit holders' middle names invalidates a notice of entry and vitiates a right of entry

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    PRACTICE AND PROCEDURE - security for costs - taxation appeal - applicant resident abroad - relevant consideration.

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    CONSUMER LAW - Sale of goods - Acceptable quality - Motor vessel - Defective construction of hull and superstructure - Goods with latent risk not of an acceptable quality CONSUMER LAW - Sale of goods - Acceptable quality - Right to reject - Whether rejection period expired - Whether nature and extent of breach of warranty had become "apparent" - Complexity of nature of defect CONSUMER LAW - Sale of goods - Fitness for purpose - Defects generating risk in the use of a vessel - Not fit for purpose CONSUMER LAW - Sale of goods - Manufacturer's warranty - Statutory guarantee - Non-compliance DAMAGES - Value of vessel at date of supply - Adequacy of evidence - Sale price less cost of repairs DAMAGES - Loss of use of a vessel as part of general damages - Measure of loss - Rate of depreciation whilst vessel not able to be used

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    PRACTICE AND PROCEDURE - joinder - order joining party

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    MIGRATION - judicial review - whether Minister had engaged in active intellectual process before cancelling applicant's visa under Migration Act 1958 (Cth) s 501(3) shortly after Court order quashing prior decision of Minister to cancel visa under s 501(2) - where applicant bore onus of proving Minister failed to consider making cancellation decision in accordance with law MIGRATION - judicial review - whether open to Minister to cancel visa under s 501(3) when four previous decisions by Minister, prior Minister and delegate not to cancel visa under s 501(2) - where applicant alleged circumstances unchanged since prior decisions including as to the applicant's inability to pass character test - consideration of independent bases for cancellation in s 501(2) and (3) MIGRATION - judicial review - whether Minister committed jurisdictional error where reasons for cancellation provided in accordance with s 501C(3) referred to reliance on "non-disclosable information" as defined in s 5(1) but did not disclose how Minister took that information into account - where Minister not required to afford procedural fairness under s 501(3) by force of s 501(5) - where definition of "relevant information" in s 501CA(2) excluded "non-disclosable information" MIGRATION - judicial review - whether open to Minister to conclude visa cancellation was in the national interest under s 501(3)(d) - whether decision under s 501(3)(d) reasonable, based on correct understanding of law, and one honest and competent Minister could have made - consideration of good faith and reasonableness in relation to exercise of Minister's powers under s 501(3)

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    CORPORATIONS - a company issued shares to which s 707(3) and s 727(1) of the Corporations Act 2001 (Cth) applied - the company did not comply with s 708A(11) of the Corporations Act by issuing cleansing prospectus - on-market trading in shares occurred without compliance with disclosure requirements of s 707(3) and s 727(1) of the Corporations Act - whether a declaration should be made validating trading in shares - whether an order should be made relieving sellers of shares from civil liability.

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    MIGRATION - fast track reviewable decision by the Immigration Assessment Authority (“IAA”) under Pt 7AA of the Migration Act 1958 (Cth) (“Act”) - appeal from judicial review of IAA decision by the Federal Circuit Court (“FCC”) - whether the decision of the IAA to not disclose any matter contained in a document and/or information the subject of a certificate issued under s 473GB of the Act was legally unreasonable - whether the IAA misconstrued s 473DD(b) dealing with “new information” and thereby fell into jurisdictional error - whether the IAA’s reliance upon what was said by the visa applicant in an entry interview demonstrated jurisdictional error - appeal allowed

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    ENVIRONMENT LAW - application for judicial review of referral decision under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) - whether s 77 of the EPBC Act is the source of the Minister's power to determine whether a proposed action is a controlled action - where action determined not to be a controlled action if carried out consistently with specified manner provisions - whether Court has power to order the Minister to correct a s 77 notice - contention that the proposed action evolved or was varied from that initially referred by proponent - whether proponent sought to vary proposed action - whether Minister unilaterally varied proposed action - whether Minister erred in failing to consider the impacts of the proposed action on World Heritage and National Heritage listed site - contention that procedural fairness required further information to have been published to allow the general public and first and second applicants subsequent opportunity to comment - whether first and second applicants have a special interest likely to be affected by the proposed action - whether further information altered the proposed action - application dismissed

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    PRACTICE AND PROCEDURE - application for leave to issue subpoena - whether Applicants may inquire into liabilities of subsidiary company - where third-party parent company seeks to set aside garnishee order

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    NATIVE TITLE - interlocutory application by Mr Keith Kemp to be joined as a party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) (joinder application) - joinder application dismissed, with no order as to costs

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    BANKRUPTCY AND INSOLVENCY - whether to approve nunc pro tunc liquidator's entry into funding agreement on behalf of company in liquidation pursuant to s 477(2B) of the Corporations Act 2001 (Cth) ("Act") - whether to make justification order pursuant to s 90-15(1) of the Insolvency Practice Schedule (Corporations), being Sch 2 of the Act, regarding liquidator's entry into funding agreement in circumstances where funder a potential debtor of the company PRACTICE AND PROCEDURE - whether to make confidentiality order pursuant to ss 37AF(1)(b), 37AG(1)(a) and 37AJ of the Federal Court Act 1976 (Cth) to protect details of funding agreement where purpose is to fund public examinations to assist decision whether to commence litigation

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