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Lastest Judgments from the Federal Court

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    REPRESENTATIVE PROCEEDINGS - three overlapping open securities class actions against the same respondent - consideration of circumstances which have led to the rise of competing securities class actions - consideration of remedial response to competing class actions in Australia and North America - identification of multiple factors relevant to response - substantially the same claims and substantially the same causes of action - consideration of proposed common fund order and advantages of a funding model linking risk and return to funders by reference to costs incurred - comparative analysis of proceedings including proposals for reducing legal costs and likely return to group members - whether a continuation of duplicative proceedings would amount to an abuse of process - whether equity should intervene to enjoin parties to prevent multiplicity of proceedings - whether a "declassing" order should be made under s 33N(1) or s 33ZF of the Federal Court of Australia Act 1976 (Cth) - application for a permanent stay of two of the proceedings allowed - orders facilitating stay of two proceedings and continuation of one open class proceeding EQUITY - equitable remedies to control multiple proceedings before the Court and protecting the processes of the Court - bills of peace

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    PRACTICE AND PROCEDURE - application for leave to appeal interlocutory judgment of Federal Circuit Court of Australia - whether leave to appeal should be granted - whether decision of primary judge attended by sufficient doubt to warrant reconsideration by appellate court - application dismissed MIGRATION - judicial review - cancellation of Subclass 573 (Higher Education Sector) visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) by delegate of the Minister for Immigration and Border Protection - where visa was subject to ongoing conditions pursuant to cl 573.6 of Schedule 2 to the Migration Regulations 1994 (Cth) - cancellation of visa due to visa holder not complying with a condition of the visa - failure to meet cl 573.611(a) of Schedule 2 to the Migration Regulations 1994 (Cth) - cancellation of visa due to breach of condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) - application to the Administrative Appeals Tribunal for review of decision to cancel visa - where Administrative Appeals Tribunal affirmed decision to cancel visa - where applicant challenged the decision of the Administrative Appeals Tribunal in judicial review proceedings commenced in the Federal Circuit Court of Australia - where primary judge summarily dismissed application at a show cause hearing due to failure to advance an arguable case of jurisdictional error by the Administrative Appeals Tribunal - where applicant now seeks leave to appeal from dismissal of review application - whether leave to appeal should be granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) - whether primary judge failed to consider compelling circumstances raised in the Federal Circuit Court of Australia - whether applicant was denied procedural fairness - where judgment of primary judge not attended by sufficient doubt to warrant leave to appeal - no jurisdictional error identified - application dismissed

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    INDUSTRIAL LAW - ss 186(3) and 186(3A) of the Fair Work Act 2009 (Cth) ("FW Act") - judicial review of decision by Fair Work Commission ("Commissioner") and appeal decision of the Full Bench of the Fair Work Commission ("Full Bench") - disapproval of an enterprise agreement - non-satisfaction that employees were "fairly chosen". ADMINISTRATIVE LAW - jurisdictional error - whether the Commissioner misconstrued s 186(3A) of the FW Act - whether the Commissioner was bound to find that workers under agreement were "organisationally distinct" because the agreement excluded casual employees, even though their work was of the same nature - whether Commissioner failed to regard relevant considerations and material and regarded irrelevant considerations in deciding whether the group of employees was "fairly chosen" - purpose of s 186(3) - no evidence or no available inference ground of review - no jurisdictional error - unnecessary to consider the reasons given by the Full Bench - Commissioner's decision founded on two independent bases - no basis to quash the decision where only one basis challenged - appeal dismissed.

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    BANKRUPTCY & INSOLVENCY - creditors' petition - application to serve outside jurisdiction pursuant to s 309(2) of the Bankruptcy Act 1966 (Cth) - application granted

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    TRUSTS AND TRUSTEES - application by a liquidator for declarations and directions - application of Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 - directions made.

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    REPRESENTATIVE PROCEEDING - application for final orders under s 33ZF of the Federal Court of Australia Act 1976 (Cth) relating to settlement approval - parties seeking Court approval of "costs balance payment" agreed between the parties - whether the proposed "costs balance payment" is fair and reasonable - approval granted - final orders made

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    MIGRATION - protection visa application - whether the Tribunal was empowered to dismiss the application for non-appearance which was upheld by the Federal Circuit Court of Australia - no jurisdictional error found - application dismissed

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    CORPORATIONS - scheme of arrangement - second Court hearing - approval of scheme under s 411(4)(b) of the Corporations Act 2001 (Cth).

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    MIGRATION - application for review of a decision of the Federal Circuit Court to uphold the Refugee Review Tribunal's decision not to grant the appellant a protection visa .Held: appeal dismissed

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    MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - where the appellant had previously been refused a protection visa - where his subsequent protection visa application was deemed invalid under s 48A of the Migration Act 1958 (Cth) - where he claimed that s 48A did not apply to him because the Form 866 he used to make the first protection visa application was in a different form to that originally prescribed by the Migration Regulations 1994 (Cth) - where this claim has been rejected in multiple decisions of this Court. Held: application dismissed

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    MIGRATION - application for review of a decision of the Federal Circuit Court to uphold the Refugee Review Tribunal's decision not to grant the appellant a protection visa. Held: appeal dismissed

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    MIGRATION - non-appearance by appellant at the hearing of the appeal - appeal dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth)

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    MIGRATION - application for (class XA) protection visa - appeal from Federal Circuit Court of Australia - whether the judge committed jurisdictional error - whether the Tribunal erred in finding the appellant was not owed protection obligations - where ground not raised before Circuit Court - where appellant misunderstood the Court's role on appeal - where Tribunal properly understood its obligations to comply with Ministerial Direction 56 and section 499 of the Migration Act 1958 (Cth) - appeal dismissed

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    NATIVE TITLE - a delegate of the Native Title Registrar decided to accept an ILUA for registration on the Register of ILUAs - application for judicial review of the delegate's decision - s 24CK of the Native Title Act 1993 (Cth) - whether the decision invoked an error of law - whether the delegate failed to take relevant considerations into account - meaning of "all reasonable efforts" and "who hold or may hold native title" - whether irrelevant considerations taken into account - application dismissed.

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    MIGRATION - whether Federal Circuit Court of Australia judge erred in dismissing application for review of decision of Immigration Assessment Authority ("IAA") to affirm denial of visa - whether IAA's decision not to request further information from appellant a legally unreasonable exercise of its discretion under s 473DC of the Migration Act 1958 (Cth) - appeal dismissed

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    PATENTS - patent for safety system used for the detection of obstructions in the path of a moving part of machinery, such as press brakes - claim for infringement - issues as to validity; PATENTS - infringement - whether infringement established - construction of the claims of the patent - failure to establish that respondent's systems infringe the claims asserted; PATENTS - validity - cross-claim for invalidity - whether patent is invalid - priority date - whether the claims are disclosed in earlier priority documents - disclosure in provisional applications considered - novelty - whether lack of novelty established - prior art base - consideration of prior art systems - obviousness - identification of the person skilled in the relevant art - matters and particulars of common general knowledge - fair basis - failure to establish grounds of invalidity

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    CORPORATIONS – application for leave pursuant to s 600H(1)(b) of the Corporations Act 2001 (Cth) to allow creditors with “subordinate claims” arising from subscription for shares to vote at the second meeting of creditors – whether a creditor’s claim in relation to subscription for shares is a “subordinate claim” as defined in s 563A(2) of the Corporations Act – whether the phrase “otherwise dealing” in s 563A(2)(b) of the Corporations Act is to be understood by reference to s 766C(1) and if so, whether the qualifications in s 766C(2)-(7) must be taken into account – whether or not the issue of shares to the subscriber is relevant for the purposes of s 563A(2) of the Corporations Act – application granted COSTS – application by interveners that their costs be costs of the administration – interveners not joined as party to the proceedings – application dismissed

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    MIGRATION - non-appearance by appellant at the hearing of the appeal - appeal dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth)

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    CORPORATIONS - Bank bill market - trading in prime bank bills - Bank Bill Swap Reference rate (BBSW) - bank accepted bill futures - interest rate swaps - cross-currency swaps - market manipulation - artificial price in traded BBSW referenced products - financial market - false or misleading appearance in a market - false or misleading appearance with respect to price for trading - contraventions of ss 1041A and 1041B of Corporations Act 2001 (Cth). CORPORATIONS - non-disclosure of rate set trading practice - misleading or deceptive conduct - false or misleading representations - contraventions of s 1041H of Corporations Act - contraventions of ss 12DA and 12DF of Australian Securities and Investments Commission Act 2001 (Cth) - unconscionable conduct - financial instruments referencing BBSW - non-disclosure of rate set trading practice to counterparties - unconscionable conduct within the meaning of the unwritten law - statutory unconscionability - contraventions of ss 12CA, 12CB and 12CC of Australian Securities and Investments Commission Act. CORPORATIONS - financial services licence - licence obligations - whether financial services provided efficiently, honestly and fairly - conflict of interest - training of representatives - contraventions of s 912A(1) of Corporations Act .

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