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Lastest Judgments from the Federal Court

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    NEGLIGENCE - application for interlocutory injunction to remove the applicant from Nauru so that he can receive appropriate mental health treatment - whether respondents owe or may breach their duty of care to provide healthcare services reasonably designed to meet the applicant's medical requirements - whether the applicant suffers a mental illness and is at risk of self-harm or suicide - whether the applicant requires specialist treatment unavailable on Nauru - whether Nauru is an appropriate environment to provide the applicant with effective medical treatment PRACTICE AND PROCEDURE - principles relevant to grant of interlocutory injunction - whether a serious question to be tried - where the balance of convenience lies - injunction granted to require the respondents to transfer the applicant to a place where he can receive appropriate mental health treatment

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    TRADE MARKS – Registrar’s power under s 81 of the Trade Marks Act to correct an error made in entering a particular in the Trade Marks Register – Court’s power under s 85 and s 88 to order the amendment of the Register distinguished – statutory scheme under Part 8, Division 1 and Division 2 considered – error not made “in entering” a particular in the Register – no power to amend under s 81 – whether valid change of name under s 216 of the Trade Marks Act a jurisdictional fact – Mediaquest Communications LLC v Registrar of Trade Marks distinguished

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    COSTS - indemnity costs - whether rejection of settlement offers unreasonable or imprudent - applicable principles - where settlement offers did not place the offeree in a substantially better position than it achieved on appeal - discretion as to costs - where respondents substantially successful on appeal and cross-appeal - where appellant successful on a number of issues - appropriate apportionment

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    BANKRUPTCY AND INSOLVENCY - cross-border insolvency - application for recognition of foreign bankruptcy proceeding as foreign main proceeding under Art 17 of Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law) pursuant to Cross-Border Insolvency Act 2008 (Cth) - where foreign bankruptcy proceeding analogous to liquidation under Pt 5.4 of Corporations Act 2001 (Cth) - consideration of temporal duration and modification or termination of stay under Art 20(2) of Model Law - whether foreign shipping line required to advertise automatic termination of stay under r 15A.7 of Federal Court (Corporations) Rules 2000

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    INDUSTRIAL LAW - alleged contraventions of s 45 of the Fair Work Act 2009 (Cth) - piecework workers under Award - whether piecework rates enabled employees to earn minimum hourly rate - whether respondents were knowingly involved in contraventions by another entity - consideration of essential elements of contraventions - where not proved that respondents knew that employees were casual employees - respondents were not knowingly involved in contraventions

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    CORPORATIONS - application to extend the convening period for the second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth) - where administrators in the process of obtaining valuations of real property assets - time required for proper investigation of company's affairs - application granted

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    EVIDENCE – rulings – whether opinions based substantially on specialised knowledge – whether previous ruling should be revisited in light of evidence subsequently given under cross-examination in concurrent evidence session

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    PRACTICE AND PROCEDURE - discovery - two applications for further discovery - where standard discovery ordered pursuant to r 20.14 of the Federal Court Rules 2011 (Cth) - where contention that the respondent to the application for further discovery has not made standard discovery in accordance with r 20.14 of the Rules with respect to particular categories of documents - consideration of the meaning of "direct relevance" under r 20.14(2) - where the "Peruvian Guano train of inquiry test" no longer applies

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    INDUSTRIAL LAW - right of entry - where permit holder sought to exercise right of entry - where permit holder sought access to records or documents - whether permit holder was lawfully exercising the right of entry - whether permit holder had right to access records or documents - consideration of requirements of entry notice - whether the entry notice specified the particulars of the suspected contravention - whether entry notice contained the requisite declaration - whether right of entry exercised for the purpose of investigating a suspected contravention - whether suspicion of contravention reasonable - whether the documents sought were directly relevant to a suspected contravention

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    MIGRATION - fast track reviewable decision by the Immigration Assessment Authority (Authority) under Pt 7AA of the Migration Act 1958 (Cth) - appeal from judicial review of Authority decision by the Federal Circuit Court - extension of time in which to file notice of contention - whether Authority entitled to consider "new information" under s 473DD - whether Authority erred in construction of s 473DD - where Minister's appeal ground made out but decision upheld on grounds contained in notice of contention - appeal dismissed

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    MIGRATION - partner visa application - appeal against decision of the Federal Circuit Court to dismiss application for judicial review of Tribunal's decision - where Tribunal made a determination that the visa application was not valid because of s 48 of the Migration Act 1958 (Cth) (the Act) - interaction of s 48 of the Act and reg 2.12 and item 1124B of Sch 1 of the Migration Regulations 1995 (Cth) (the Regulations) - whether item 1124B(3) of Sch 1 to the Regulations could affect the validity of a visa application - whether item 1124B(3) of Sch 1 to the Regulations operated retrospectively - whether the appeal should be dismissed for being futile - meaning of "primary decision" in s 476(4) of the Act

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    PRACTICE AND PROCEDURE - costs - where appellant partially successful on appeal - where injunctions initially awarded narrowed on appeal - costs sought in relation to interlocutory applications - costs awarded accordingly

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    CORPORATIONS - application for declarations and orders under s 1322 - where shares issued on 40 occasions in apparent contravention of disclosure requirements in s 707(3) and s 727(1) of the Corporations Act 2001 (Cth) - where almost all shares issued were on-sold within 12 months - where most share issues were under a convertible note agreement and a subscription deed - where agreement and deed each required issuer to comply with disclosure obligations and issue shares that were freely tradable - where cleansing notices could have been issued in most cases - where cleansing prospectus issued after trading - where no blatant or flagrant disregard of disclosure obligations - whether a declaration should be made that sales of shares not invalid - whether an order should be made relieving sellers of shares from civil liability - whether relief from civil liability should extend to companies issued with shares under the terms of the agreement and the deed - consideration of appropriate form of orders

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    CONSUMER LAW - admitted contraventions of the Australian Consumer Law - misleading or deceptive representations as to consumer rights in relation to software faults - consideration of principles in relation to fixing an appropriate penalty

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    MIGRATION - protection visa - where the Administrative Appeals Tribunal found that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the First Tribunal Decision) - where the Tribunal subsequently found that the discretion in s 501(1) to refuse the applicant's visa on character grounds should not be exercised (the Second Tribunal Decision) - where the Minister exercised the power in s 501A(2) to set aside the Second Tribunal Decision and to refuse the applicant's application for a protection visa - whether decision of the Minister affected by jurisdictional error on the basis that it was not made within a reasonable time - whether the Minister misunderstood the legal consequences of a decision to refuse the applicant a visa - whether the Minister failed to afford natural justice by making decision on a basis not disclosed to the applicant - whether the Minister's decision was affected by apprehended bias

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    NATIVE TITLE - interlocutory application for summary dismissal of an application for leave to appeal to a Full Court from an order under s 66B of the Native Title Act 1993 (Cth) replacing the then applicant (Former Applicant) - where some of the individuals who comprised the Former Applicant were deceased or did not provide instructions to the solicitor to file the application for leave to appeal - whether Former Applicant, the applicant for leave to appeal, had no authority to file the leave application - whether the solicitor acting for the Former Applicant was acting without a retainer and without instructions - whether the reinstatement as applicant in the proceedings of the individuals who were formerly authorised as the applicant would be futile - application to amend so as to proceed in the name of 14 individuals, not acting jointly - leave to amend granted - where appropriate for consequent issue of standing to be determined by Full Court - where appropriate for issue of futility to be determined by Full Court

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    CORPORATIONS - disqualification from managing corporations - s 206F of Corporations Act 2001 (Cth) - whether notice of disqualification validly served by ASIC - meaning of requirement for notice to be served 'on the person' - where notice provided electronically to applicant's solicitor - where notice came to the actual attention of the applicant - notice validly served - application dismissed

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    MIGRATION - Appeal from a decision of the Federal Circuit Court appealing a decision of the Minister not to grant a protection visa to a "fast track applicant" - application of the s 473DD exception to the s 473DB prohibition on the Authority considering new information where there were "exceptional circumstances" - whether it was open to the Authority to conclude that "exceptional circumstances" were not made out - meaning of "exceptional circumstances" - whether the Authority took too narrow an interpretation of "exceptional circumstances" - whether the Authority had considered the s 473DD(b)(ii) requirement - whether the primary judge properly considered the matters required to be considered under s 473DD(a) - construction of s 473DD

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    CORPORATIONS - interlocutory application by the Australian Securities and Investments Commission for preservation and restraining orders under the Corporations Act 2001 (Cth) - consideration of the Court's power to grant freezing orders where no receiver has been appointed Held: application allowed

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