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Lastest Judgments from the Federal Court

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    PRACTICE AND PROCEDURE - application for leave to further amend Further Amended Statement of Claim - application of case management principles to self-represented litigant - where matter at advanced stage of preparation for trial - where matter on foot for nearly three years - where grant of leave would cause further delay in proceedings - where certain proposed amendments had been substantially addressed and denied in previous applications to amend - where no reasonable explanation for delay in seeking to amend pleadings - where pleadings are embarrassing and do not identify any reasonable cause of action - application dismissed. PRACTICE AND PROCEDURE - application for joinder of two further respondents - where joinder likely to cause further delay in proceedings - where no arguable case against proposed respondents - application dismissed

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    PRACTICE AND PROCEDURE - application for leave to amend Notice of Appeal - where new ground sought to be relied upon - where Appellant expressly abandoned reliance on existing Ground of Appeal - whether to grant leave to amend - where no explanation for delay in making application or reason as to why new ground not previously relied upon - where no self-evident error - leave refused

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    INDUSTRIAL LAW - alleged contraventions of s 417 of the Fair Work Act 2009 (Cth) - stop work meetings - where the enterprise agreement contained a union meeting clause - proper construction of union meeting clause - meaning of "industrial action" under s 19(1) of the Fair Work Act 2009 (Cth) - whether otherwise unlawful conduct can be authorised within the meaning of s 19(2)(a) - whether authorised conduct is "industrial action" for the purposes of Pt 3-3 of the Fair Work Act 2009 (Cth) - relevance and operation of s 194(e) of the Fair Work Act 2009 (Cth). INDUSTRIAL LAW - where the respondent union instigated a campaign against the principal contractor across numerous sites - stop work meetings and strike action - admitted contraventions of ss 346(b), 355 and 417 of the Fair Work Act 2009 (Cth) - appropriate penalties - application of s 556 of the Fair Work Act 2009 (Cth) - general and specific deterrence - prior contraventions and similar previous conduct - contrition and cooperation - application of the totality principle under s 557 of the Fair Work Act 2009 (Cth)

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    EDUCATION - penalties - where the Respondent fabricated VET qualification certificates which were used to apply for employment - where the Respondent made false representations that he held VET qualifications when applying for employment - where Respondent admitted contraventions - consideration of principles to be applied in determining quantum of penalty - whether limited financial circumstances of contravener of relevance

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    BANKRUPTCY AND INSOLVENCY - application for leave to prosecute proceedings in Supreme Court of New South Wales - where proceedings already commenced when sequestration order made against First Respondent - whether leave should be granted

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - whether the primary judge erred in finding the Administrative Appeals Tribunal (AAT) did not commit jurisdictional error because it had considered and addressed the appellant's claim to be an apostate - whether the primary judge erred in finding the AAT did not commit jurisdictional error because it had asked itself the right question of what the appellant would do in the event he returned to Iran - whether the primary judge erred in not finding the AAT committed jurisdictional error by failing to ask why the appellant may act in a certain manner when he returns to Iran - whether the primary judge erred in finding the AAT did not commit jurisdictional error in considering whether, in light of the severity and nature of the penalty for being an apostate, there was any prospect of the appellant being found to be an apostate irrespective of his conduct - appeal dismissed, with costs

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    MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - whether primary judge erred in failing to find a decision of the then Refugee Review Tribunal was affected by jurisdictional error - whether primary judge erred in failing to find that non-disclosure of a certificate issued under s 438 of the Migration Act 1958 (Cth) in relation to an earlier visa application by the same applicant constituted a breach of procedural fairness - where earlier file not before the delegate of the Minister in relation to the application and decision the subject of this proceeding - whether error on the part of the primary judge is identified

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    PRACTICE AND PROCEDURE - application to revoke or vary an order once varied - alleged non-disclosure of material fact - obligation by a solicitor to indemnify client in respect of an order for costs thrown away - whether client's primary obligation compromised by settlement deed - whether settlement deed subject to implied undertaking as to its use - whether use of settlement deed obtained in circumstances justifying refusal of relief in any event - no material facts withheld from Court - application dismissed

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    PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory order of a judge of this Court - s 24(1A) of the Federal Court of Australia Act 1976 (Cth) -whether sufficient doubt about the primary judge's decision - where primary judge refused to extend time to comply with procedural orders after the time for compliance had elapsed - where the defence of the first respondent in the principal proceedings was struck out upon default by operation of self-executing order - where the trial will otherwise proceed without either of the respondents having a defence in the proceedings

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    PRACTICE AND PROCEDURE - application for a lump sum costs orders - relevant principles discussed - where circumstances warrant lump sum costs order -quantification of lump sum costs order

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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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    TAXATION – Wine Equalisation Tax; Objection against the Commissioner’s decision to refuse an application for approval under s 77FD of the Excise Act 1901 (Cth) for the Applicant to receive duty-free spirits for use in fortifying Australian wine; Whether products proposed to be manufactured constitute “wine”; Definition of “wine” in s 31-1(1) of the A New Tax System (Wine Equalisation Tax) Act 1999 (Cth)

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    COSTS – circumstances in which some reduction in costs to successful parties may be warranted

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    COSTS - security for costs - application for review of Registrar's decision to require plaintiff to provide security for costs - where it is accepted that plaintiff would not be able to pay costs - where persons standing behind plaintiff declined to provide information regarding financial position - application for review of Registrar's decision dismissed

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    MIGRATION - application for extension of time and leave to appeal from orders of the Federal Circuit Court of Australia - protection visa - application dismissed

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    NATIVE TITLE - consent determination (Part B) - requirements of s 87A of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders

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    CORPORATIONS - application under s 1322(4) of the Corporations Act 2001 (Cth) to validate late filing of cleansing notice - where otherwise open to lodge cleansing notice under s 708A(5)(e) - where omission by company inadvertent

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    MIGRATION - Child (Residence) (Class BT) visa - appeal from the Federal Circuit Court - where "incapacity for work" in regulation 1.03 of the Migration Regulations 1994 (Cth) was construed by the primary judge as requiring total incapacity - whether "incapacity for work" encompasses total or substantial incapacity - whether incapacity for work ought to be assessed by the application of a two-stage process STATUTORY INTERPRETATION - consideration of the meaning of "incapacity for work" pursuant to regulation 1.03(b)(ii) for the purposes of assessing dependency and whether the appellant constituted a "dependent child" - consideration of extrinsic material where ambiguity - words "incapacitated" and "incapacitated for work" and "dependent" and "dependent child" Held: appeal allowed

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    BANKRUPTCY AND INSOLVENCY - application to set aside a bankruptcy notice - whether the applicants have a counterclaim - whether there is an entitlement to damages pursuant to a prior undertaking - applicability of National Credit Code - where there was a failure to advance arguments in previous proceedings

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    INTELLECTUAL PROPERTY - patents and designs for plastic produce containers - validity and infringement

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