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Lastest Judgments from the Federal Court

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    COSTS - where an order was made for payment of an amount pursuant to s 588FA(1)(a) of the Corporations Act 2001 (Cth) - whether interest should be calculated on the amount payable from the date of the demand for payment by the plaintiffs or from the date of the commencement of the proceeding - whether costs should be awarded on a party and party basis or on an indemnity basis pursuant to r 25.14(3) of the Federal Court Rules 2011 (Cth)

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    COSTS - whether trade mark owner entitled to costs of successful infringement proceeding when trade marks were ordered to be removed from the Trade Marks Register - offer of compromise - whether respondents entitled to costs on an indemnity basis

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review - whether Immigration Assessment Authority was required to consider claims cumulatively

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    PRACTICE AND PROCEDURE - security for costs - where Applicant failed to pay security for costs - whether proceeding should be dismissed

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    CORPORATIONS – validation of share issue – where issued shares not admitted for quotation within the time prescribed under s 723(3)(b) and s 724(1)(b)(ii) of the Corporations Act 2001 (Cth) – application under s 1322(4) of the Corporations Act by the issuer of securities for an extension of that period – where there is no reason for the Court not to exercise its discretion and grant relief – application granted.

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    MIGRATION - application for extension of time in which to file notice of appeal from Federal Circuit Court of Australia judgment - application denied as proposed appeal lacking in merit

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    TRUSTS AND TRUSTEES - Trust over shares in corporation - express trust - objective theory as to ascertaining intention - whether intention to create trust in the future or with immediate effect - whether a trust over directors' powers - validity or enforceability of trust - trust in favour of unincorporated association - whether a trust for members - whether a non-charitable purpose trust - whether a trust with ascertained object(s) - "contract holding" theory discussed in Neville Estates Ltd v Madden [1962] Ch 832 - whether immediate or postponed vesting - rule against perpetuities - "wait and see" approach - necessarily implied "lives in being" in terms and context of relevant trust instrument - breach of trust - causal consequences flowing from breach of trust - innocent third parties - scope of equitable remedies CORPORATIONS - Cancellation of shares - validity of cancellation where trust thwarted or breached - re-instatement of shares and rectification of the register - s 140(2) and s 175(1) of the Corporations Act 2001 (Cth)

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    MIGRATION - appeal from orders of primary judge dismissing application for review of Administrative Appeal Tribunal's decision to affirm decision of delegate of first respondent to refuse grant of protection visa to appellant - whether primary judge erred in applying wrong test in considering whether Tribunal's findings were open to it - assertion that correct test was whether Tribunal's findings were legally unreasonable - whether no "evident or intelligible justification" to Tribunal's findings - whether primary judge erred in rejecting omissions as being "information" for purposes of s 424A of Migration Act 1958 (Cth) - whether primary judge failed to carry out judicial duty in relying upon adverse credibility findings of Tribunal to dismiss appellant's claims below and failing to consider whether those findings had proper basis - held: no error found - held: appeal dismissed on all asserted grounds

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    DEFAMATION - interlocutory application seeking hearing of separate question or strike out of claim - is the matter complained of reasonably capable of being about the applicant - where publication only refers to company name - whether reference to company name without more can constitute reference to individual behind company - asserted notoriety of individual behind company - operation of s 9 of Defamation Act 2005 (NSW) - whether separate question hearings to be countenanced in Federal Court proceedings - asserted lack of jurisdiction or basis for strike out due to failure to identify readers in Australian Capital Territory or Northern Territory - whether imputations reasonably capable of arising or being defamatory of applicant or whether imputations are bad in form - held: article about company is not automatically article about owner unless link exists within publication - held: separate question granted and answered "no" - held: judgment entered for respondents with costs

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    MIGRATION - application for Safe Haven Enterprise visa - appeal from Federal Circuit Court of Australia - whether judge erred in failing to find the Authority had misconstrued or misapplied sections 473DC, 473DD and 473DF of the Migration Act 1958 (Cth) - whether the Authority self-identified the relevance of new information - whether the Authority adopted a contradictory approach to country information - whether the Authority's interpretation of "exceptional circumstances" was unduly narrow - where Authority did not misconstrue the relevant test - appeal dismissed

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    MIGRATION - application for (class XA) protection visas - appeal from the Federal Circuit Court of Australia - whether judge committed jurisdictional error - whether there was a failure to find the Administrative Appeals Tribunal erred in applying the test for a real risk of significant harm - complementary protection - where appellants are a family unit comprising wife and husband - where the wife's claim of converting religion was accepted - where appellants claim their religion requires them to proselytise throughout their home country - whether relocation was therefore not reasonable - appeal dismissed

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    CORPORATIONS - application of the Registrar of Aboriginal and Torres Strait Islander Corporations regarding contraventions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - where first respondent admits to the contraventions - where question addressed is what penalties should be imposed on the first respondent - where penalties proposed by the parties considered appropriate being declarations of contravention, disqualification, compensation and pecuniary penalty

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    INDUSTRIAL LAW - where declarations made that respondents contravened sections 346(a), 348 and 500 of the Fair Work Act 2009 (Cth) - appropriate pecuniary penalties - where only one penalty imposed in respect of the three civil penalty provisions pursuant to s 556 - where the lead contravention is intent to coerce in breach of s 348 - where penalties should reflect both specific and general deterrence - where the first respondent's contraventions were deliberate and no contrition shown - penalty of 75% of the maximum imposed on first respondent - contravention record of second respondent regarded - where second respondent must do more to ensure its officials meet standards of the Act - penalty of 80% of maximum imposed on second respondent

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    NATIVE TITLE - interlocutory application to be joined as a respondent in claimant application made under the Native Title Act 1993 (Cth) - where joinder application of registered native title body corporate for a different native title determination area previously dismissed - where joinder applicant is a member of the applicant - whether it is in the interests of justice that he be joined as a respondent - where a question of abuse of process does not self-evidently arise - where an issue of whether the effect of the claim group description was properly understood is not of present relevance - no sufficient interest to justify individual claim group member being joined as respondent - interlocutory application dismissed

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    INSURANCE - claim against former insurance agent and authorised representative - obligation of agent to deliver records and correspondence of principal, upon request, to principal

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    INDUSTRIAL LAW - appeal from a judgment of the Federal Court of Australia - where the primary judge found that two officials of the Construction, Forestry, Mining and Energy Union, who held permits under the Fair Work Act 2009 (Cth), had not contravened ss 500 and 340 of that Act - where the permit holders made five entries to the relevant premises - where those permit holders did not provide notice of those entries as required by s 487 - where, once they had entered, they did not produce their permits upon request as required by s 489 - where the primary judge held that, because no notice had been given and no permits had been produced upon request, they were not exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) and so s 500 was not engaged - where the primary judge held that s 340 had not been contravened because the request for the production of a permit under s 489 did not involve a "workplace right" as defined by s 341 - whether the primary judge erred in failing to find contraventions of ss 500 and 340 INDUSTRIAL LAW - where the respondents cross-appealed from the same judgment - whether the primary judge erred by finding, for reasons of comity, that a bare failure by a permit holder to give notice under s 487 or to produce a permit under s 489 constitutes acting in an "improper manner" for the purpose of s 500 - whether the primary judge erred by failing to hold that s 500 could not be contravened without a finding of some prejudice to the site occupier's ability to conduct its business as usual - whether the primary judge erred by failing to dismiss the alleged contraventions of s 500 in circumstances where he had found that the Commissioner's pleadings were confined to allegations of bare contraventions of ss 487 and 489 - whether the primary judge erred in holding that the Commissioner's pleadings were so confined - whether the primary judge erred by finding that, had s 361(1) of the Fair Work Act 2009 (Cth) been engaged for the purposes of s 340, the third respondent would not have discharged his onus to prove that he had not acted for a proscribed purpose STATUTORY INTERPRETATION - meaning of "exercising, or seeking to exercise, rights in accordance with this Part" in s 500 of the Fair Work Act 2009 (Cth) - whether a permit holder who refuses or fails to comply with s 487 or s 498 could be found to be exercising or seeking to exercise a right in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) - whether "in accordance with" means "in conformity with" or "covered by" STATUTORY INTERPRETATION - meaning of "otherwise act in an improper manner" in s 500 of the Fair Work Act 2009 (Cth) - whether a bare failure to comply with s 487 or s 489 constitutes acting in an improper manner STATUTORY INTERPRETATION - meaning of "workplace right" in s 341(1) of the Fair Work Act 2009 (Cth) - whether the ability of an occupier to request the production of authority documents under s 489 constitutes an entitlement to the benefit of, or a role or responsibility under, a workplace law for the purposes of s 341(1)(a) - whether a request for authority documents constitutes initiation of, or participation in, a process or proceeding under a workplace law for the purposes of s 341(1)(b)

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    MIGRATION - appeal from orders dismissing application for judicial review of decision under Part 7AA of the Migration Act 1958 (Cth) - whether Immigration Assessment Authority overlooked "new information" provided to the Authority - whether jurisdictional error - relocation - whether Authority made finding on relocation without probative evidence - appeal upheld

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    BANKRUPTCY AND INSOLVENCY - whether to approve liquidator's entry into funding agreement on behalf of company in liquidation pursuant to s 477(2B) of the Corporations Act 2001 (Cth) - approval granted

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