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Lastest Judgments from the Federal Court

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    MIGRATION - Application for an extension of time to seek judicial review of a decision of the Minister under s 501CA(3A) of the Migration Act not to revoke the mandatory cancellation of the applicant’s visa – application out of time by 33 days – extension of time opposed on the basis that the applicant’s proposed application for judicial review has no prospects of success – visa cancelled under s 501(3A) because a delegate of the Minister was satisfied that the applicant did not pass the character test by reason that the applicant had been convicted of a sexually-based offence involving a child – whether error in decision of the Minister

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    ADMIRALTY - proposed action in rem -application for issue of a warrant to arrest a vessel after dismissal of earlier proceedings and previous arrest of vessel - proposed proprietary maritime claim application under the Admiralty Act 1988 (Cth) PRACTICE AND PROCEDURE - abuse of process - arrest would be unjustifiably oppressive to party - arrest would bring administration of justice into disrepute

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    PRACTICE AND PROCEDURE - consideration of the validity of orders made by a judge of this Court - appeal against orders for two arrest warrants to issue CORPORATIONS - where arrest warrants issued for the arrest of the appellant in relation to examination for the purposes of a special purpose liquidators' investigation - where primary judge ordered that a warrant issue for the arrest of the appellant in order to secure his attendance at Court for an examination before a registrar - where primary judge ordered that a warrant issue for the arrest of the appellant following his failure to attend voluntarily for examination by the respondents, in their capacity as additional special purpose liquidators, on two separate occasions - whether appellant provided with no notice of orders requiring attendance for examination - whether primary judge erred in ordering a warrant for arrest to issue by failing to consider reasonable cause for non-attendance on examination dates - consideration of r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) and matters identified in Ian Lawrence Struthers (in his capacity as liquidator) of PACI Pty Ltd [2005] NSWSC 864 CONTEMPT OF COURT - where primary judge signed a statement of charge for contempt of court arising from the appellant's failure to attend on two examination dates - where primary judge made further orders for a warrant to issue for the arrest and detention of the appellant to answer those charges of contempt of court - whether primary judge erred in ordering a warrant for arrest to issue by failing to consider r 42.14(2) of the Federal Court Rules 2011 (Cth) correctly - whether primary judge failed to consider the defects in the statement of charge - consideration of the requirements of r 42.14(2) of the Federal Court Rules - consideration of the requirements of rr 41.06 and 41.07 of the Federal Court Rules PRACTICE AND PROCEDURE - where respondents filed a notice of objection to competency, but did not press this at the appeal hearing - where orders made by the primary judge were interlocutory in nature, so as to require leave to appeal - where no such leave required - consideration of this Court's appellate jurisdiction under s 24 of the Federal Court of Australia Act 1924 (Cth) - where judgment appealed from affects the appellant's liberty and was made in proceedings relating to an alleged contempt of court and so engaged s 24(1C) of the Federal Court of Australia Act - whether respondents' notice of objection to competency should be formally dismissed

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    CORPORATIONS - scheme of arrangement - application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement - application to postpone meeting - application under s 411(4)(b) of the Act to approve a proposed scheme of arrangement

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    MIGRATION - visa cancellation under s 501 of the Migration Act 1958 (Cth) on character grounds - where the Minister's delegate refused to revoke the mandatory cancellation under s 501CA - where leave was granted for the applicant to amend his grounds of review - whether the Tribunal's adoption of the Minister's Statement of Facts and Contentions constituted jurisdictional error - whether the Tribunal erred by not making inquiries - whether the Tribunal failed to consider mandatory relevant considerations in its assessment of the considerations in Ministerial Direction No. 65 - whether the Tribunal erred in its assessment of the impact on victims based on the evidence, or lack thereof, before it - whether the Tribunal's decision was manifestly unreasonable or irrational - whether greater duties were imposed upon the Tribunal as the applicant was unrepresented - held: grounds dismissed

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    PRACTICE AND PROCEDURE - representative proceeding - vacation of hearing dates

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    COSTS - costs of patent proceeding - where both the claim for infringement and cross-claim for invalidity were dismissed - appropriate costs order following the judgment as to liability - assessment of the relative success of the parties - Calderbank and other offers made - effect of those offers

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    NATIVE TITLE - native title rights and interests pursuant to a Court determination - claims asserting relief on the bases of acts affecting native title rights, including causes of action in tortious interference, conspiracy, trespass and breach of contract - where the native title claimants agreed 'to the suspension of the operation and enjoyment of Native Title over the Project Area' - extent to which native title rights were circumscribed - whether claimants are presently entitled to assert native title rights - where claims advanced depend on findings as to the present status of the claimants native title rights purportedly suspended by contractual agreement - where issues arise as to the priority of the parties' rights PRACTICE AND PROCEDURE - applications for dismissal of the claim pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) - principles applicable to assessments under s 31A - where the claims raise novel issues - applications dismissed

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    CORPORATIONS - application by creditor to appoint special purpose liquidators under s 90-15 of Sch 2 of the Corporations Act 2001 (Cth) - where circumstances indicate investigations are required - where liquidators have no funding - where creditor will fund special purpose liquidators - whether appropriate to make order appointing special purpose liquidators - application successful. CORPORATIONS - application for approval of a funding agreement under s 477(2B) and s 506(1A) of the Corporations Act 2001 (Cth) - application successful. CORPORATIONS - application for a suppression order or a non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) - whether order is necessary to prevent prejudice to the proper administration of justice - application successful.

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    PRACTICE AND PROCEDURE - apprehended bias - consideration of principles regarding disqualification

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    CORPORATIONS - application for orders that trading in shares following a failure to comply with disclosure obligations was not invalid and orders relieving sellers from civil liability pursuant to s 1322(4) - where admitted contraventions of s 707(3) and s 727 as to disclosure - where cleansing notice under s 708A(5)(e) was insufficient disclosure because trading in shares suspended for more than five days in previous 12 months - contraventions due to honest error which had been explained - cleansing prospectus subsequently issued - application allowed

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    NEGLIGENCE - duty of care owed by solicitors and counsel in providing legal advice to a nursing home operator - whether respondents were negligent in failing to advise the applicant of proposed and relevantly later enacted legislation that would regulate the aged care industry - whether respondents were negligent in failing to advise of available grounds for challenging validity of review panels constituted under the National Health Act 1953 (Cth) and to challenge sanctions imposed by the Minister pursuant to s 45E of that Act - whether advice could have prevented the Minister from revoking the applicant's approval to operate a nursing home - whether advice would have enabled the applicant to obtain an injunction and rebuild a new nursing home facility or to sell its bed licences - application dismissed

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    TRUSTS AND TRUSTEES - application by beneficiary to inspect documents held by trustee - where documents relate to possible claim by trustee against legal advisers - whether claim is a third party indemnity claim or a free-standing claim - whether the claim is held by trustee for benefit of beneficiaries or is a personal claim - whether documents are "trust documents" or held personally by trustee - whether the plaintiff has a proprietary interest in trust documents - discussion of the "proprietary" approach - discussion of the "discretionary" approach - application of Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 - whether documents subject to joint legal professional privilege - practice and procedure - alternate form of application as one for preliminary discovery - application dismissed

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    BANKRUPTCY AND INSOLVENCY - hearing of creditor's petition adjourned by a Registrar of the Federal Circuit Court of Australia to a date after the petition was due to expire - order subsequently made by the Registrar pursuant r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) so as to extend the life of the petition - corrective order made after life of petition would otherwise have expired - whether power conferred by r 16.05(2)(e) available to be exercised on the facts- whether earlier order for the adjournment reflected the intention of the Registrar - whether the power conferred by the slip rule was inconsistent with subss 52(4) and (5) of the Bankruptcy Act 1966 (Cth) - whether subsequent sequestration order validly made. Held - appeal dismissed.

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    MIGRATION - appeal from decision of Federal Circuit Court of Australia ("FCCA") to affirm Administrative Appeals Tribunal ("AAT") decision to deny appellants protection visas - where appellants disputed AAT's factual findings - no appellable error - appeal dismissed

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    PRACTICE AND PROCEDURE - application for leave to administer interrogatories - consideration of principles - application granted in part

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    CORPORATIONS - application to terminate winding up - whether principles governing winding up apply equally to corporate trustees - where company was removed as trustee to trading trust upon winding up order - where underlying business has sufficient resources to pay debts

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    INDUSTRIAL LAW - costs - summary dismissal of application for judicial review - whether proceedings instituted without reasonable cause in accordance with s 570(1) of the Fair Work Act 2009 (Cth) - whether costs should be paid by the applicant's legal representatives

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    ADMINISTRATIVE LAW - inquest by the Chief Coroner of the Australian Capital Territory - where subject matter of inquest has a measure of overlap with pending criminal charges against the corporate applicant and the Commonwealth - application to restrain the Coroner from requiring the applicant's employee to give evidence - whether requiring the employee to give evidence would pose a real risk of interference with the administration of justice and constitute a contempt of court - whether the Coroner has statutory power under the Coroners Act 1997 (ACT) to require the applicant's employee to give evidence if it would otherwise constitute a contempt of court - principle of legality - consideration of principles in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 - Held: application dismissed with costs

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    BANKRUPTCY AND INSOLVENCY – Appeal from a decision of the Federal Circuit Court dismissing appeal against sequestration orders – appellants’ failure to comply with bankruptcy notices requiring them to pay a judgment debt from County Court of Victoria – argued that the Court should go behind the judgment to determine if there is a debt properly owing – assignment of debt – alleged inconsistent findings of fact – alleged error in determining intention of the parties by reference to intention of the parties, not the terms of the assignment

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