INDUSTRIAL LAW meaning of s 557(3) of the Fair Work Act 2009 (Cth) penalty for unlawful industrial action no compensation under s 545(1) appropriate conduct of employer and purpose of industrial action relevant to penalty and compensation whether employer wants compensation relevant to whether a compensation order should be made
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934
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PXYJ v Minister for Immigration and Border Protection [2018] FCA 927
MIGRATION - application for review of a decision of the Administrative Appeals Tribunal - where the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a Partner (Migrant) (Class BC) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) - where the applicant incorrectly sought to 'appeal' from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - whether the Tribunal erred in its consideration of the 'primary considerations' under Ministerial Direction No 65 and the 'best interests' of minor children - whether the Tribunal erred in considering whether the applicant had a well-founded fear of persecution in light of BCR16 - whether the Tribunal failed to appropriately assess Australia's international non-refoulement obligations - where no jurisdictional error demonstrated
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Sara, in the matter of an inquiry into the election for offices in the Australian Salaried Medical Officers Federation [2018] FCA 844
INDUSTRIAL LAW - Inquiry into elections for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) -- irregularities in relation to election - where at the time when the election commenced to be conducted an altered Constitution for the organisation came into effect - where altered Constitution created new offices for election and changed the basis for election in some cases
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Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Separate Question Case) [2018] FCA 956
PRACTICE AND PROCEDURE - Rule 30.01 Federal Court Rules 2011 (Cth) - application for particular questions arising in proceeding to be heard separately from any other questions - guiding principles - application of principles to particular circumstances - where hearing of separate questions has capacity to bring proceedings to finality
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Pirini v Minister for Immigration and Border Protection [2018] FCA 945
MIGRATION - where the applicant seeks an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) to make an application seeking judicial review of a decision of the Assistant Minister for Immigration and Border Protection (Assistant Minister) - where the Assistant Minister determined not to revoke the decision under s 501(3A) of the Act to cancel the applicant's visa - whether an extension of time should be granted and the appeal should be allowed - application dismissed.
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CTS15 v Minister for Immigration and Border Protection [2018] FCA 938
MIGRATION - where appellant is a national of Sri Lanka and is of Tamil ethnicity and Hindu religion - where appellant was granted a subclass 679 (Sponsored Family Visitor, Short Stay) visa - where appellant made an application for a Protection visa after entering Australia - where delegate of the Minister for Immigration and Border Protection (delegate) refused the appellant's application for a Protection visa - where on review the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) considered the matter and affirmed the delegate's decision not to grant the appellant a Protection visa - where Federal Circuit Court made an order that the appellant's application for judicial review of a decision of the Tribunal be dismissed
PRACTICE AND PROCEDURE - appeal from orders made by the Federal Circuit Court - whether the primary judge erred in his approach to the one ground of judicial review which the appellant pursued before the Federal Circuit Court, being that she would suffer significant harm if she returned to Sri Lanka because action would be taken against her by the authorities under various pieces of legislation - whether the Tribunal erred in not disclosing a certificate under s 438 of the Migration Act 1958 (Cth) to the appellant - where appellant requires leave to raise a particular ground of appeal - where appellant made a decision not to press a particular ground before the Federal Circuit Court and the Minister would have acted differently had the point been pursued
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AVN17 v Minister for Immigration and Border Protection [2018] FCA 937
MIGRATION - where applicant is a national of Sri Lanka - where applicant claims to be a Tamil from the Eastern Province in Sri Lanka - where applicant claims that his uncle was a commander in the Liberation of Tigers of Tamil Eelam (LTTE) and that he holds a fear that he has been imputed with an LTTE profile and will be harmed by the Sri Lankan authorities should he return to Sri Lanka - where applicant also claims to fear harm due to his prolonged absence from Sri Lanka and his status as a failed asylum seeker - where applicant arrived in Australia as an unauthorised maritime arrival - where applicant lodged an application for a Safe Haven Enterprise visa - where delegate of the Minister for Immigration and Border Protection (delegate) refused to grant the visa - where Immigration Assessment Authority (Authority) affirmed the delegate's decision not to grant the visa - where applicant brought an application for judicial review in the Federal Circuit Court of Australia - where applicant sought constitutional writs in relation to a decision of the Authority under Part 7AA of the Migration Act 1958 (Cth) - where Federal Circuit Court dismissed the applicant's amended application for judicial review
PRACTICE AND PROCEDURE - application for extension of time within which to appeal from orders made by the Federal Circuit Court with respect to an application for judicial review - where application for extension of time made five days after the expiration of the 21 day time period in which the applicant was required to file and serve a Notice of Appeal from the orders made by the Federal Circuit Court - consideration of factors relevant to whether an extension of time should be granted - where order made to the effect that the application for extension of time and the appeal (if an extension of time is granted) be heard together - whether appeal lacks sufficient merit to warrant an extension of time being granted - whether Authority's reasoning was illogical or irrational - whether appeal has no prospects of success
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SZTZY v Minister for Immigration and Border Protection [2018] FCA 911
MIGRATION - appeal from Federal Circuit Court - alleged jurisdictional error of primary judge - cumulative consideration. Held - appeal dismissed.
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CVS16 v Minister for Immigration and Border Protection [2018] FCA 951
MIGRATION - protection visas - appeal from Federal Circuit Court - whether documents overlooked by the Immigration Assessment Authority - whether failure by the Immigration Assessment Authority to provide reasons for procedural decision under s 473DD of the Migration Act 1958 (Cth) - Held: appeal dismissed
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Registered Organisations Commissioner v Mijatov [2018] FCA 939
INDUSTRIAL LAW - penalty dispute arising from conceded liability for contraventions of care and diligence duties in relation to financial management of union under s 285(1) of Fair Work (Registered Organisations) Act 2009 (Cth) - failure to prepare and table budgets - agreed payment of back pay but disagreement as to entitlement - value of general deterrence for financial management contraventions - whether applicant discharged onus of showing failure of respondent to take necessary care in obtaining back payment and that resulting in payment without entitlement - whether any mitigating circumstances - held: onus discharged by applicant but seriousness of offence lessened by mitigating circumstances - held: penalties ordered totalling $2000
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ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950
MIGRATION - protection visas - appeal from Federal Circuit Court - "fast track" merits review by Immigration Assessment Authority - legislative constraint on Authority considering "new information" - where Authority was given a translation of a document that was before the delegate - whether Authority erred to treat the translation document as not being "new information" for the purposes of s 473DD of the Migration Act 1958 (Cth)
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Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92
MIGRATION - Appeal from single judge of the Federal Court on remittal from the High Court under s 44, Judiciary Act 1903 - where no decision yet on whether to refuse to grant the appellant a protection visa on character grounds under s 501(1), Migration Act - where appellant received letter advising of possible exercise of the power to refuse to grant the protection visa under s 501(1) only after the decision was made that Australia owed him non-refoulement obligations - whether breach of procedural fairness by reason of alleged failure to afford the appellant an opportunity to be heard on whether any exercise of the power under s 501(1) should precede a consideration of whether he was owed protection obligations - whether failure to consider exercise of power under s 501(1) immediately or to invite submissions on whether it should be exercised first was legally unreasonable - whether Minister estopped from refusing to grant the appellant a protection visa under s 501(1) - whether any representation was made capable of giving rise to an estoppel - where estoppel would impermissibly fetter the exercise of a statutory duty and impede compliance with a statutory duty - whether primary judge's reasons inadequate - appeal dismissed.
PRACTICE AND PROCEDURE - Where appellant submitted that the Federal Court lacked jurisdiction to entertain the matter on remittal - where appellant submitted that the remittal order by the High Court was a nullity - where remittal order valid and binding unless and until set aside - where attack on validity of remittal order was an impermissible collateral attack on a High Court order - observations on whether the matter fell within the Federal Court's jurisdiction under s 476A(1)(c), Migration Act
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ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98
ADMINISTRATIVE LAW - personal property - where possession of personal property important common law right - whether Secretary had power to approve "blanket policy" authorising officers to search for and seize mobile phones and sim cards of all persons held in immigration detention under Migration Act 1958 (Cth) ss 252, 273(1) or 5(1), 189 and 196 - whether blanket policy a valid direction to officers by the Secretary under Public Service Act 1999 (Cth) s 13(5)
STATUTORY INTERPRETATION - Migration Act 1958 (Cth) s 252 - whether s 252(2) authorises search - whether "hidden" things includes objects in plain view or carried in clothing for ordinary use - whether mobile phone or sim card "other thing" "capable of" being used to help detainee escape from immigration detention under s 252(2)(a) - whether officer must give consideration to individual circumstances of detainees when considering whether to search under s 252 - whether blanket policy fetters officers discretion to hold mobile phone or sim card for such time as officer "thinks necessary" under s 252(4)
STATUTORY INTERPRETATION - Migration Act 1958 (Cth) s 273(1) - whether Ministers power to cause detention centres to be "established and maintained" under s 273(1) authorised blanket policy to take personal property of detainees in all circumstances - whether power to maintain detention centre under s 273 limited by specific powers to search and seize under ss 252-252C
STATUTORY INTERPRETATION - Migration Act 1958 (Cth) ss 5(1), 189 and 196 - whether confiscation of mobile phones and sim cards of all detainees in immigration detention "taking such action and using such force" as "reasonably necessary" to detain under s 5(1)
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Encompass Corporation Pty Ltd v Infotrack Pty Ltd (No 3) [2018] FCA 942
COSTS - consideration of appropriate reduction in successful party's costs - where Respondent succeeded on invalidity of patents - where Respondent raised multiple grounds of invalidity but succeeded only on one ground
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DOC16 v Minister for Immigration and Border Protection [2018] FCA 943
MIGRATION - appeal from decision of Federal Circuit Court of Australia ("FCCA") to affirm Immigration Assessment Authority ("IAA") decision to deny appellant protection visa - whether FCCA judge erred in failing to find IAA failed to consider integer of appellant's protection claim - no particular social group claim advanced before IAA, particular social group claim advanced after the fact - appeal dismissed
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Bosanac v Commissioner of Taxation [2018] FCA 946
INCOME TAX - appeal by taxpayer from objection decision disallowing objections to notices of amended assessment - whether applicant discharged onus of proving impugned assessments were excessive.
ADMINISTRATIVE LAW - where Commissioner excluded applicant from "Project DO IT" initiative - challenge to validity of the resulting amended assessments and assessments of shortfall penalty pursuant to s 39B of the Judiciary Act 1903 (Cth) - whether reliance upon this initiative was justiciable in Pt IVC tax appeals
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Preston, in the matter of Toys 'R' Us (Australia) Pty Ltd (Administrators Appointed) [2018] FCA 940
CORPORATIONS - application for extension of time to convene second meeting of creditors - where extension sought to allow completion of sale of company's business and proper investigation of its affairs - application granted
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Marsden (Liq) v CVS Lane PV Pty Limited, in the matter of Pentridge Village Pty Limited (In Liquidation) (Receiver and Manager Appointed) (Controller Appointed) (No 2) [2018] FCA 921
PRACTICE & PROCEDURE - costs - related proceedings in liquidation - costs ordered in first proceeding as liquidator substantially successful despite directors' opposition - costs ordered in second proceeding as directors' interlocutory application dismissed
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Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93
APPEAL - nature of appellate review - appeal by way of rehearing - degree of deference to primary judge's findings - degree of error - whether error of primary judge must be demonstrated as wrong by 'inconvertible facts or uncontested testimony' - where findings on matter of impression - consideration of Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd and Robinson Helicopter Company Inc v McDermott
CONSUMER LAW - misleading or deceptive conduct - false or misleading representations about goods - whether packaging represented that argan oil responsible for performance benefits of products - whether packaging represented that goods wholly or substantially made from natural ingredients - where primary judge relied on dictionary definitions of 'natural'
TRADE MARKS - Trade Marks Act 1995 (Cth) s 41 - proper construction of former provision - whether word mark to some extent inherently adapted to distinguish - whether word mark capable of distinguishing by reason of use
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Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957
INDUSTRIAL LAW - admitted contraventions of s 355 and s 348 of the Fair Work Act 2009 (Cth) - making of declarations - principles relating to imposition of agreed pecuniary penalties - relevance of previous contraventions of industrial legislation by registered organisation to the penalty to be imposed upon an individual respondent employed by that organisation - relevance of previous contraventions of industrial legislation by a different branch or division of a registered organisation - whether senior officials of a registered organisation involved in contravening conduct - proportionality of penalty to contravening conduct - whether co-operation justify any mitigation - general deterrence - specific deterrence - absence of contrition - principle of totality - whether a single course or multiple courses of conduct
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