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Lastest Judgments from the Federal Court

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    MIGRATION - application for judicial review of a decision to refuse waiver of "no further stay" condition (Condition 8503) on visitor visa - whether in the interests of justice to grant leave to amend notice of appeal - leave granted - failure of delegate to put material finding to appellant - whether failure to afford procedural fairness denied appellant of possibility of different outcome - appeal allowed

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    BANKRUPTCY AND INSOLVENCY – Application for orders that the receiver and manager, and liquidator of a group of unregistered managed investment schemes is justified in causing those entities to enter into and perform obligations under a settlement deed in respect of extant proceedings relating to liquidation; whether course of action in best interests of those with a claim to the net assets of the funds; assignment of judgment debt

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    PRACTICE AND PROCEDURE - where application for leave to appeal to Full Court from refusal of discovery application for search warrants affidavits to be heard on 17 August 2018 - where challenge to issue of search warrants adjourned pending Full Court hearing and determination of application for leave to appeal and any appeal - application to adjourn hearing of balance of the challenges to validity of search warrants on their face and execution of search warrants - application refused

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    MIGRATION - where Tribunal found it lacked jurisdiction to review the delegate's decision because the application for review was lodged outside the prescribed period of 28 days after notification of the decision under s 412(1)(b), Migration Act - where delegate's decision sent to last email address pursuant to s 494B(5) and taken to have been received at the end of the same day under s 494C(5) - where Federal Circuit Court dismissed application for judicial review on a show cause hearing under r 44.12(1)(a), Federal Circuit Court Rules - whether grounds of appeal lack sufficient prospects of success to warrant the grant of leave to appeal

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    PRACTICE AND PROCEDURE - application for interim injunction pending the hearing and determination of an application for an interlocutory injunction - where the first respondent did not oppose the making of interim orders - where the second respondent had not been served and therefore the application proceeded on an ex parte basis against the second respondent - whether to grant interim relief against the second respondent PRACTICE AND PROCEDURE - service out of jurisdiction - alleged contraventions of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) - whether requirements for service out of the jurisdiction satisfied

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    CORPORATIONS - application under s 57 of the Federal Court of Australia Act 1976 (Cth) for an order that the liquidators be appointed as Receiver of the trust assets - consideration of whether it is just and convenient to make such an order - consideration of s 477(2) of the Corporations Act 2001 (Cth)

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    ADMINISTRATIVE LAW – Proceedings under s 39B of the Judiciary Act claiming false detention; where alleged errors by the Department of Social Services alleged to have led to the applicant’s failed citizenship claim; where applicant in detention following unsuccessful visa and residency applications on the basis that the applicant is an “unlawful non-citizen”; where applicant convicted of criminal offences PRACTICE AND PROCEDURE – Application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act; alternative application pursuant to r 16.21(1) of the Federal Court of Australia Rules striking out the applicant’s pleading

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    COSTS – Appropriate cost orders in circumstances where applicant had partial success in application; whether costs should be apportioned on an issues basis; discretion as to costs under s 43 of the Federal Court of Australia Act

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    PRACTICE AND PROCEDURE - Application for an extension of time and leave to appeal an order dismissing the applicant's application for leave under s 237 of the Corporations Act; grant of leave to commence a proceeding in the name of a company pursuant to section 237(2) of the Corporations Act; leave to appeal interlocutory order; appeal without an oral hearing pursuant to r 35.18(1) of the Federal Court Rules

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    MIGRATION – whether application for extension of time incompetent by reason of failing to disclose previous proceedings as required by s 486D of the Migration Act 1958 (Cth) –whether s 486D constitutes a jurisdictional precondition which must be met when proceedings are commenced – whether application could be “cured” retrospectively by amendment – whether application challenging an international treaties obligations assessment (ITOA) on which an Administrative Appeals Tribunal (AAT) decision is based is an application “in relation to” an AAT decision for the purposes of s 474A(1)(b) - whether application is an abuse of process – whether Federal Court has jurisdiction to entertain a challenge to the ITOA application outside a challenge to the AAT’s decision – application dismissed

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    CORPORATIONS – representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – collapse of corporate group – debentures (notes) issued – trustee for debenture holders (noteholders) – whether trustee breached his duty under s 283DA(a) of the Corporations Act 2001 (Cth) to exercise reasonable diligence – discussion of the content of the duty – whether trustee breached his duty in equity to exercise reasonable care – whether trustee breached a fiduciary duty to act bona fide in the interests of the applicant and group members, and engaged in unconscionable conduct, by resigning as trustee – whether case on causation of damage established EVIDENCE – tendency evidence – whether drawing inferences from proven facts as to the time when, in hypothetical circumstances, documents might or could have been created, infringes the tendency rule under s 97 of the Evidence Act 1995 (Cth)

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    INTELLECTUAL PROPERTY - consideration of the question of whether the respondents/cross-claimants ought to be given leave to pursue a cross-claim for invalidity in Claims 1, 3 and 4 of an Innovation Patent on a ground engaging s 138(3)(f) and s 40(3) of the Patents Act 1990 (Cth)

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    PRACTICE AND PROCEDURE - discovery - whether orders should be made for disclosure - concise statement - direct relevance determined by reference to concise statement and affidavit in support of application - order made for discovery of categories of documents PRACTICE AND PROCEDURE - subpoena - leave to inspect documents - whether leave should be refused on the basis that documents not relevant - orders made for inspection

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    PRACTICE AND PROCEDURE - where Grounds of Appeal raise different arguments to those relied on in the Federal Circuit Court - consideration of circumstances in which an appellant may be permitted to rely upon new Grounds - whether Appellant should be granted leave to rely upon new arguments - leave refused

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    PRACTICE AND PROCEDURE - consideration of an application to dismiss the proceeding pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth)

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    MIGRATION - application for extension of time to seek leave to appeal - application dismissed

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    MIGRATION - Protection Visa - application for leave to appeal from Federal Circuit Court's refusal of extension of time - proposed appeal would be incompetent - application dismissed

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    TAXATION - appeal from a decision of the Federal Court on demurrer - judicial review sought pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to the formation by the Commissioner of an opinion that there had been fraud or evasion for the purposes of item 5 of s 170(1) of the Income Tax Assessment Act 1936 (Cth) - circumstances in which the formation of a fraud or evasion opinion can be subject to judicial review PRACTICE AND PROCEDURE - application for an extension of time for filing a notice of appeal - appeal from judgment on demurrer - whether demurrer finally disposed of the dispute - leave to appeal interlocutory decision

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    MIGRATION - appeal against Federal Circuit Court - whether primary judge erred - whether the Immigration Assessment Authority engaged in speculation - reasonable and rational basis for predictive tasks. Held - appeal dismissed with costs.

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    MIGRATION - application under s 477A(2)(a) of the Migration Act 1958 (Cth) for an extension of time within which to lodge an application for review of a migration decision - where applicant's visa was cancelled under s 501(2) - where applicant delayed in filing application for review of cancellation decision - where applicant claimed delay was due to difficulty obtaining and completing documentation required to lodge application for review - where explanation for delay inadequate - where proposed grounds of review insufficient to warrant grant of extension of time - application refused

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