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Lastest Judgments from the Federal Court

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    PRACTICE AND PROCEDURE - application for preliminary discovery under rule 7.23 of the Federal Court Rules 2011 (Cth) - where the prospective applicant believed it had a right to obtain relief in a claim against the prospective respondent for misleading and deceptive conduct under section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) - where the prospective applicant claimed it needed more information to determine if the prospective respondent was acting "in trade or commerce" - the test for determining whether an application under rule 7.23 succeeds - whether the prospective applicant subjectively held the belief that it had suffered damage or loss to its reputation. Held: application dismissed

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    INDUSTRIAL LAW - appeals from the Industrial Relations Court of South Australia - immunity of a foreign State from the jurisdiction of Australian courts under s 12(1) of the Foreign States Immunities Act 1985 (Cth) (the Immunities Act) - application of s 12(4) of the Immunities Act - whether an inconsistent provision is included in the contracts of employment - meaning of "inconsistent provision" - whether a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision - appeals dismissed.

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    MIGRATION - protection visa - application to file amended notice of appeal - whether a law is of general application - whether a law is appropriate and adapted to some legitimate object in the country in question - costs thrown away

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    PRACTICE AND PROCEDURE - application for hearing of separate questions pursuant to r 30.1 Federal Court Rules 2011 (Cth) - whether appropriate to determine separate questions where no established or agreed facts - where facts pleaded in Further Amended Statement of Claim are assumed for the purposes of the separate questions NEGLIGENCE - negligent misstatement - whether claim brought within six-year limitation period TRADE PRACTICES - alleged contraventions of ss 52 and 53A Trade Practices Act 1974 (Cth) and s 42 Fair Trading Act 1987 (NSW) - misleading and deceptive conduct - false or misleading representations in relation to land - where relevant legislation amended in 2001 and 2003 to increase limitation period from three to six years - whether claims brought within limitation period

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    MIGRATION - visa cancellation - character test - Ministerial Direction 65, cll 8, 9 - interests of minor children as a primary consideration - whether denial of procedural fairness - whether "legitimate expectation" disappointed - legal unreasonableness - Convention on the Rights of the Child 1989, Art 3, 9 - Migration Act 1968 (Cth), ss 501(2), (6)(a), (7)(c)

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    COSTS - appeal from a decision dismissing an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - where the appeal was dismissed - where the appellant contends that the proceedings have a "public character" and raise novel questions of public importance

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    TAXATION - construction of Deed of Agreement, Guarantee and Indemnity - Commissioner and taxpayer in dispute as to the alleged taxation liabilities as described in Amended Assessments and Penalty Notices in respect of the years of income ended 30 June 2009, 30 June 2010 and 30 June 2011 - in exchange for securities given in accordance with the Deed, the Commissioner agreed to forbear from undertaking recovery action in respect of the taxation debt upon the terms and conditions set out in the Deed - whether, within the meaning of cl 3.6(k) of the Deed, a valuation procured by the Commissioner indicated that the valuation of the property was less than the valuation provided by the taxpayer or guarantor - if so, whether the taxpayer provided a mortgage over additional property having unencumbered equity of at least half the difference between the Commissioner's valuation and the valuation provided by the taxpayer or guarantor PRACTICE AND PROCEDURE - where previous application by taxpayer discontinued by consent - whether issue estoppel or abuse of process on the part of the Commissioner Held: application dismissed, with costs

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    NATIVE TITLE - application for joinder under s 84(5) - whether prospective party a person whose interests are affected - whether in the interests of justice for prospective party to be joined - application for joinder granted.

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    PRACTICE AND PROCEDURE - application under r 30.11 of the Federal Court Rules 2011 for consolidation of proceedings

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    NATIVE TITLE - consent determination - requirements of s 87 of the Native Title Act 1993 (Cth)

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    CORPORATIONS - application for orders pursuant to s 247A(1) of the Corporations Act 2001 (Cth) permitting two applicants to inspect a company's books - first applicant no longer a member of the company at time application determined - second applicant's current holding trivial in value - whether applicants acting in good faith and for a proper purpose - whether objective basis for investigation into suspected contraventions of the Act - whether consequential legal claims legally misconceived

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    ADMINISTRATIVE LAW - appeal from the decision of the Administrative Appeals Tribunal - whether the Tribunal denied the Minister procedural fairness - whether the Tribunal made a legally unreasonable decision. CITIZENSHIP - whether under s 16 of the Australian Citizenship Act 2007 (Cth) the respondent was eligible to become an Australian citizen - whether a person is a parent of a child under s 16 of the Australian Citizenship Act 2007 (Cth) - where a parent is an Australian citizen- where child born outside Australia

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    CONSUMER LAW – financial services – false or misleading representations – where the respondent (Telstra) provided a service called the Premium Direct Billing Service (PDB service) to domestic and business customers as a default setting on Telstra mobile services (ie, customers were not required to opt-in) – where the PDB service enabled customers to purchase subscriptions to digital content supplied by third parties and have the charges billed to their Telstra account – where the operation of the PDB service led to a significant number of customers unintentionally purchasing and being billed for PDB content subscriptions without their knowledge or consent – where parties prepared an agreed statement of facts and jointly proposed declarations and orders that Telstra pay pecuniary penalties totalling $10 million – whether the PDB service was a “financial product” – whether, in providing the PDB service, Telstra was providing a “financial service” – whether proposed orders appropriate – proposed orders made

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    WORKERS' COMPENSATION - appeal from a decision of the Administrative Appeals Tribunal (Tribunal) setting aside a decision to reject the employee's claim for compensation - where employee transferred to different area of employment in accordance with mobility policy - where employee suffered from an adjustment disorder with anxiety - whether Tribunal misconstrued the phrase "in respect of the employee's employment" in the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

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    MIGRATION - application for judicial review of decision affirming refusal of protection visa to appellant - whether primary judge erred in failing to find jurisdictional error on part of Immigration Assessment Authority - whether primary judge should have found that Authority erred in not finding serious harm if appellant was again subject to discriminatory conduct and asserted loss of livelihood in his home country - whether primary judge erred in finding no error on part of the Authority in relation to considering new information in exceptional circumstances - held: no error on the part of primary judge as asserted; appeal dismissed on all grounds; leave to further amend ground 1 refused

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    MIGRATION - appeal from Federal Circuit Court - error of law by failing to consider relevant considerations - alleged illogical or irrational decision - lack of credibility in claims - Tribunal was aware and had regard to relevant considerations - no merits in the grounds of appeal. HELD - appeal dismissed with costs.

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    CORPORATIONS - scheme of arrangement - application for order pursuant to s 411 of the Corporations Act 2001 (Cth) that company convene meeting of members

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    COPYRIGHT - application for "site blocking" orders under s 115A of the Copyright Act 1968 (Cth) - online locations from which files used to facilitate operation of online streaming service may be downloaded - whether requirements of s 115A satisfied - whether orders should be made

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    COSTS - where each party was successful in respect of key aspects of the case - where case assumed a different complexion following abandonment of a ground by the successful party - where matter of precedential value to successful party - no order as to costs made

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