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Lastest Judgments from the Federal Court

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    PROCEDURE - application for summary judgment - taxation liability - failure of respondent to appear - prior dismissal of both judicial review application alleging illegality of assessments and taxation appeal against income tax decision in respect of three assessments - absence of any defence on the merits - evidence of taxation liability - summary judgment granted. EVIDENCE - absence of designations of office in respect of signature on copies of notice of assessment of income tax - other evidence of signature and that signatory a Deputy Commissioner of Taxation - ability of Court to compare signature on copies of notice of assessment with proven signature of Deputy Commissioner of Taxation - Judiciary Act 1903 (Cth) s 79, Evidence Act (Qld), s 59. Held - comparison permissible - signatures that of Deputy Commissioner of Taxation and therefore copies conclusive.

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    BANKRUPTCY - application under s 121 of the Bankruptcy Act 1966 (Cth) to void transactions against trustee in bankruptcy - whether the bankrupt was insolvent, or about to become insolvent, at the time of the transactions for the purposes of s 121(2) of the Bankruptcy Act - when is a debt due and payable - application granted

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    INDUSTRIAL LAW - contraventions of s 348 of Fair Work 2009 (Cth) - blockade of work site and threats made by union official - re-sentencing - appropriate pecuniary penalties for contraventions by union and union official INDUSTRIAL LAW - personal payment order under s 546 of Fair Work Act 2009 (Cth) - whether appropriate to make personal payment order - scope of personal payment order that is appropriate in the circumstances

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    PRACTICE AND PROCEDURE - application pursuant to r 13.01(1)(d) of the Federal Court Rules 2011 seeking orders discharging previous orders made granting leave to serve originating process on defendants in Israel - consideration of whether the plaintiffs have satisfied and are able to satisfy the requirements of r 10.43(4) of the Federal Court Rules 2011 for leave to serve the originating process on a person in a foreign country - whether the plaintiffs have satisfied the requirement to demonstrate a prima facie case for relief against the defendants in Israel - consideration of claims for relief made pursuant to the Corporations Act 2001 (Cth) and the Conveyancing Act 1919 (NSW) - where prima facie case demonstrated, at least with respect to the claim for relief pursuant to the Conveyancing Act 1919 (NSW) - consideration of whether to discharge the orders in the exercise of discretion - whether insufficient prospects of success to warrant putting overseas defendants to the time, expense and trouble of defending the claims - insufficient prospects not demonstrated on the evidence - application for orders discharging service ex juris dismissed

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    MIGRATION - where the Federal Circuit Court refused application for judicial review of Administrative Appeals Tribunal decision affirming delegate's decision not to grant the appellant a protection visa - where appellant claimed to fear harm by reason of his sexuality - where Tribunal found in effect that the appellant's credibility had been so weakened that "the well has been poisoned beyond redemption" and no weight can be given to corroborating evidence - consideration of principles governing judicial review of adverse credibility findings - whether Tribunal failed to give a proper, genuine consideration to evidence of critical witness - whether Tribunal made adverse credibility findings lacking any logical or probative basis - appeal allowed - matter remitted to the Tribunal differently constituted for determination according to law. PRACTICE AND PROCEDURE - where primary judge failed to give sufficient reasons and constructively failed to exercise jurisdiction by failing to consider fundamental aspects of the appellant's case - whether the matter should be remitted to the Federal Circuit Court to determine the application for judicial review - consideration of the need to guard again erosion of the appellate structure - where compelling factors against remitting the matter to the Federal Circuit Court

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    BANKRUPTCY AND INSOLVENCY - interlocutory injunction - urgent application for stay of Property Seizure and Delivery Orders made by Supreme Court of Western Australia - where Sheriff has already executed - where no grounds for urgent intervention by Federal Court of Australia properly established - where stay application also before the Supreme Court of Western Australia

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    TAXATION - application for a stay of the proceedings - request for further and better particulars - whether the proceedings ought to be stayed pending the outcome of another appeal - whether the Commissioner's appeal statements are sufficient - where the interests of justice are contrary to a grant of stay - where the taxpayer is to be put to proof - application for stay refused - request for particulars declined

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    MIGRATION - appeal from Federal Court decision dismissing application for judicial review of Federal Circuit Court (FCC) decision - where FCC refused to extend time under s 477(2), Migration Act 1958, within which to seek judicial review of Tribunal decision cancelling appellant's protection visa under s 107, Migration Act, for incorrect information - consideration of the scope of the Federal Court's jurisdiction to issue a writ of certiorari to quash a decision of the FCC - consideration of the scope of jurisdictional error and of non-jurisdictional error of law on the face of the record in the context of an inferior court of record - whether the "record" includes the reasons of the FCC - whether FCC misconceived its function under s 477(2) or breached procedural fairness in rejecting evidence of increased risk of harm after the Tribunal's decision as irrelevant - whether FCC misconceived its function in failing to consider whether the appellant's case was arguable but rather considering if it would succeed - whether FCC reasoning illogical - appeal dismissed

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    INDUSTRIAL LAW - interlocutory application for summary judgment - alternatively, interlocutory application for orders to strike out parts of the applicant's statement of claim and require her to replead - where applicant pleaded breach of statutory duty, breach of implied term of good faith and adverse action - where respondent sought splitting order - no splitting order made - specific paragraphs of statement of claim struck out with liberty to replead - interlocutory application otherwise dismissed

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    MIGRATION - appeal from the Federal Circuit Court of Australia - where Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a fast track reviewable decision of the Minister - where Authority made an oral invitation to the appellant to comment on new information at an interview - where invitation required appellant to provide comments immediately - whether the invitation to comment on new information complied with s 473DF(2) of the Migration Act 1958 (Cth) and r 4.42 of the Migration Regulations 1994 (Cth) - whether, in the circumstances, it was legally unreasonable for the Authority to invite the appellant to comment on new information immediately at the interview

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    MIGRATION - appeal from Federal Circuit Court - whether primary judge erred in dismissing application for judicial review - whether Tribunal failed to indicate that an integer of a claim was in issue - s 36(2)(aa) of the Migration Act 1958 (Cth) - whether Tribunal took into account possibility of torture in assessment of "significant harm" - whether there is a requirement of an act or omission in an official capacity in the definition of "significant harm" - meaning of "torture" - relevance of SZWBR v Minister for Immigration and Border Protection [2018] FCA 644 - appeal allowed

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    COSTS - costs of interlocutory application for substituted service - where respondent appeared at interlocutory hearing

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    ADMIRALTY - action in rem - vessel under arrest - proprietary maritime claim under s 4(2)(a)(i) and (ii) of the Admiralty Act 1988 (Cth) - cross-border insolvency - setting aside of writ, setting aside of arrest warrant and dismissal of proceeding PRACTICE AND PROCEDURE - appeal against decision of primary judge refusing two adjournment applications made immediately prior to commencement of trial - delay - prejudice to parties, other litigants and administration of justice - application for letter of request to be issued to High Court of Singapore - cross-border insolvency - no error by primary judge PRACTICE AND PROCEDURE - stay of orders setting aside writ, setting aside arrest warrant and dismissing proceeding - respondents sought discharge of stay - appellants sought extension of stay in order to commence another in rem proceeding - stay discharged

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    MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - Immigration Assessment Authority affirmed delegate's decision to refuse visa - Safe Haven Enterprise (Class XE) Subclass 790 visa - whether the Authority failed to consider relevant information - whether the Tribunal was obligated to disregard information under s 473DD of the Migration Act 1958 (Cth) - whether the Authority erred in drawing adverse credibility inferences from inconsistencies in appellant's evidence - whether the Federal Circuit Court Judge's reasons were adequate - appeal dismissed

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    COPYRIGHT - application for an interlocutory injunction restraining reproduction and sale of house plans and building houses in accordance with the plans - allegation of copying house plans in infringement of copyright in the plans - prima facie case established - damages an adequate remedy - balance of convenience against grant of interlocutory injunction - application dismissed

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    CORPORATIONS - scheme of arrangement - application for court approval of scheme pursuant to Corporations Act 2001 (Cth) ("Act") s 411(4)(b) - approval granted, requirements having been satisfied and no discretionary matters telling against approval - whether sealed copy of court ordered downloaded from electronic court file an "office copy" within meaning of s 411(10) of the Act

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    MIGRATION - appeal from Federal Circuit Court -alleged failure to consider a component integer of protection visa application. Held - no error - ground of appeal wanting for particularity - appeal dismissed.

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    COSTS - costs following the event - responding party successful on infringement claim and other party successful on cross-claim upholding validity of patent - incidence of costs - whether to consider claim and cross-claim globally - whether the relevant event is the successful defence of infringement claim - percentage reduction inappropriate

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    NATIVE TITLE - consent determination (Part B) - agreement under s 87 of the Native Title Act 1993 (Cth) - appropriate to make orders in the terms proposed

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    CONSUMER LAW - consumer protection - ss 18(1) and 29(1)(m) of the Australian Consumer Law (the ACL) -misleading or deceptive conduct - false or misleading representations made concerning the existence, exclusion or effect of consumer guarantee in contravention of provisions of the ACL - appeal allowed in part

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