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Lastest Judgments from the Federal Court

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    ADMINISTRATIVE LAW - Australian Crime Commission - summons - special investigations -where prior authorisation and determination amended by the Board of the Australian Crime Commission - whether amendment power to be exercised by the Board "in the like manner and subject to the like conditions", as dictated by s 33(3) of the Acts Interpretation Act 1901 (Cth) - whether Board validly determined that the authorised investigation of indefinite duration was to be a special investigation - Australian Crime Commission Act 2002 (Cth) s 7C(3)

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    BANKRUPTCY AND INSOLVENCY - application by Trustee for orders pursuant to s 53 and s 248A of the Bankruptcy Act 1966 (Cth) to consolidate bankrupt estates - where Inspector General's approval of remuneration of Trustee sought - where it is in the interests of the creditors for the estates to be consolidated

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    EXTRADITION - request by United States of America for extradition of appellant from Australia - appeal from dismissal of application for review of magistrate's order that appellant be committed to prison under s 19(9) Extradition Act 1988 (Cth) to await surrender or release - whether primary judge erred in finding that extradition request met requirements of s 19(2)(b) Extradition Act 1988 (Cth) and Article XI(3)(c) Treaty on Extradition between Australia and United States - adequacy of supporting documents - whether Article XI(3)(c) required affidavit setting forth reasonable grounds for believing that the person for whom the extradition was sought had committed an offence under United States law - appeal dismissed - application pursuant to s 39B Judiciary Act 1903 (Cth) - application for review of decision of Minister for Justice to issue notice pursuant to s 16 Extradition Act 1988 (Cth) - whether Minister failed to consider delay of prosecution authorities in bringing extradition request - whether delay amounted to abuse of process or fraud on extradition power - whether Minister can consider delay at s 16 stage of extradition process - whether Minister had duty to inquire into delay - application dismissed PRACTICE AND PROCEDURE - rejection of tender of irrelevant documents - where evidence concerned matters not before Minister

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    COSTS - whether costs should be paid forthwith - where urgent application of prospective applicant for interlocutory injunctions dismissed - where urgent application was a standalone application - where substantive application yet to be filed - where prospective applicant gave an undertaking as to damages - prospective applicant to pay costs forthwith

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    MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether FCC erred in failing to find jurisdictional error in the decision of the Refugee Review Tribunal ("Tribunal") - whether procedural fairness error of Tribunal could be transformed into a non-jurisdictional error where there is an independent un-impugned basis for the Tribunal's decision - whether procedural fairness error tainted an independent basis for the decision and whether, where it did not, relief should be denied because no useful result could ensue if the matter were remitted to the Tribunal - appeal dismissed

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    ADMINISTRATIVE LAW - application for extension of time to apply for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether the Court has jurisdiction to review a decision of Comcare not to waive a debt pursuant to a costs order made under the Federal Court of Australia Act 1976 (Cth) - where the Court does not have jurisdiction - whether the Court should exercise discretion to grant an extension of time after close to a year's delay - where it was open to the applicant to seek merits review in the Administrative Appeals Tribunal - application refused

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    PRACTICE AND PROCEDURE - application to join non-party sole director of corporate respondent - Federal Court of Australia Act 1976 (Cth) s 31A - whether applicants had reasonable prospects of successfully prosecuting claims against non-party sole director as accessory to company's alleged contraventions of Australian Consumer Law s 18, Trade Marks Act 1995 (Cth) and Copyright Act 1968 (Cth), or as joint tortfeasor in passing off or as person who authorised, directed or procured company to engage in alleged contravening conduct - whether non-party sole director as controlling mind had knowledge of essential ingredients of or was recklessly indifferent to company's alleged contraventions - where non-party sole director made prior inquiries as to authenticity of source of products subsequently found to be counterfeit

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    COSTS - Costs determined on the papers - where appellant is self-represented - where appellant did not file evidence of disbursements within period allowed - where it would be contrary to the interests of justice to prolong appeal - appellant awarded costs of Court filing fees (if any)

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - whether the primary judge erred in finding that the Refugee Review Tribunal (RRT) did not commit jurisdictional error by failing to consider that the appellant's older brother had been granted a protection visa - whether the RRT failed to consider a claim and/or an integer of a claim in respect of failing to consider the appellant's fear of harm from paramilitary groups - whether the RRT unreasonably failed to exercise its discretion under s 424 of the Migration Act 1958 (Cth), or constructively failed to carry out its review function, in not obtaining the appellant's older brother's protection visa file from the Department Held: appeal dismissed, with costs

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    ADMINISTRATIVE LAW - appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - where the Tribunal allowed consent for the use or assumption of the restricted word "bank" under s 66 of the Banking Act 1959 (Cth) - whether the Tribunal erred in failing to apply policy guidelines for the implementation of s 66 - where Guidelines were valid and not inconsistent with the Banking Act 1959 (Cth) - where the Tribunal erred in failing to take the policy guidelines into account as mandatory relevant considerations - where the Tribunal failed to engage in an active intellectual manner with the policy guidelines - whether the Tribunal ignored as an irrelevant consideration the inherent riskiness of equity crowdfunding - appeal allowed STATUTORY INTERPRETATION - construction of the implied power vested in APRA to grant consent to use restricted word under s 66 - consideration of principles of statutory construction where discretion strikes balance between competing interests - where the Tribunal misconstrued s 66 of the Banking Act 1959 (Cth)

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    COMPENSATION - quantification of equitable compensation payable

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    MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal (the Tribunal) affirming the cancellation of the applicant's visa on character grounds - whether the Tribunal failed to consider all the integers of the applicant's claim - whether the Tribunal, by relying upon an International Treaties Obligations Assessment rather than the earlier conclusions of the Refugee Review Tribunal, failed to give any real consideration to the international non-refoulement obligations owed to the applicant - whether the Tribunal failed to give any, or any real, consideration to the best interests of the applicant's children - whether the Tribunal denied the applicant procedural fairness by conducting the hearing in the absence of an interpreter - Held: application dismissed

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    PRACTICE AND PROCEDURE - service out of jurisdiction - application to serve originating application and certain other documents outside of Australia - whether requirements for service out of the jurisdiction satisfied

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    PRACTICE AND PROCEDURE - interlocutory application for directions - whether administrators are justified in causing company to continue to pay rent and insurance - whether directions are in the form of an interim stay - where administrators seek to preserve position pending outcome of appeal

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    TAXATION - research and development - spectrum of taxation advice - "boutique" advice - need for deterrence - public interest served by the granting of declaratory relief - declarations made.

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - whether the primary judge erred in finding that the Immigration Assessment Authority (IAA) did not commit jurisdictional error in finding that the real chance of harm to the appellant on the basis of his father's profile did not relate to certain southern governorates in Iraq (Ground 1), which alleged error included a claim that the IAA failed to consider an integer of the appellant's claims, namely that there was a risk of harm to him no matter where he returned to in Iraq because of his father's media profile and the Shia militia's intelligence gathering capabilities and connections (Ground 1(d)) - whether the primary judge erred in finding that the IAA did not commit jurisdictional error in assessing whether it was reasonable for the appellant to relocate within Iraq, by failing to ask itself whether the appellant would in fact relocate (Ground 2) - whether the primary judge erred in not finding that the IAA failed to consider whether the appellant could reasonably be expected to remain in certain areas in southern Iraq (Ground 3) - whether the primary judge erred in not finding that the IAA failed to take into account relevant evidence and/or considerations (Ground 4) Held: Grounds 1(a), (b) and (c), 2, 3 and 4 dismissed - By majority Ground 1(d) upheld - By majority, appeal allowed with costs

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    CORPORATIONS - scheme of arrangement - application for approval of scheme of arrangement - application allowed.

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    MIGRATION - application extension of time - country information at time of judgment - alleged error - discussion between primary judge and counsel not part of reasons for judgment - no error found - application dismissed.

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