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Lastest Judgments from the Federal Court

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    MIGRATION - application for extension of time - where Applicant due for involuntary removal from Australia next day

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    CORPORATIONS - consideration of an application under s 490(1) of the Corporations Act 2001 (Cth) for leave to make a resolution that the company be wound up voluntarily, in circumstances where an application for the company to be wound up in insolvency had been filed

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    CONTEMPT OF COURT - civil contempt - where 'freezing orders' had been made pursuant to the Corporations Act 2001 (Cth) - where the plaintiff (ASIC) brought an interlocutory application alleging contempt of court against five of the defendants for breaches of the court orders - where three of the defendants admitted liability for contempt - where ASIC and the five defendants prepared statements of agreed facts and jointly proposed orders - whether agreed proposed orders should be made - declarations and orders made substantially in the terms proposed by ASIC and the five defendants ; CONTEMPT OF COURT - civil contempt - where 'freezing orders' had been made pursuant to the Corporations Act 2001 (Cth) - where the orders included 'carve outs' that permitted the relevant defendant to pay legal expenses up to specified amounts - where the firm of solicitors acting for the defendant made payments from its trust account on behalf of the defendant that exceeded the cumulative total of the carve outs - principles applicable where contempt of court is alleged against a person who is not a party to a proceeding and is not bound by the court orders - whether such a person is subject to the strict liability in contempt that rests upon a person bound by a court order - whether requisite intention established on the facts

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    PRACTICE AND PROCEDURE - application for extension of time to initiate proceedings under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) - allegation of unlawful discrimination on the basis of gender in conduct of Commonwealth Child Support Agency - whether grant of extension of time in the interests of the administration of justice - consideration of explanation provided for delay - consideration of whether arguable case for unlawful discrimination - application dismissed

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    COSTS – where partially successful interlocutory application by respondents, including a further successful application to strike out certain paragraphs of the amended statement of claim – whether costs should be payable forthwith

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    PRACTICE AND PROCEDURE - application for extension of time to file appeal from judgment of Supreme Court of Norfolk Island - where primary judge found legal practitioner guilty of professional misconduct and unsatisfactory professional conduct - where primary judge ordered removal of legal practitioner's name from Register of Practitioners and suspended his right to practise on Norfolk Island for ten years PRACTICE AND PROCEDURE - whether application for extension of time should be referred to a Full Court pursuant to s 25(2)(b) and (e) Federal Court of Australia Act 1976 (Cth) - whether proposed grounds of appeal have sufficient merit to warrant extension of time - whether adequate explanation for delay

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    EVIDENCE - rulings - whether use of evidence should be limited under s 136 of the Evidence Act - whether evidence should be excluded under s 135 of the Evidence Act

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    PRACTICE AND PROCEDURE - freezing orders - application by affected parties to vary freezing orders over a specific fund - whether the applicants should be permitted to withdraw funds from that fund for the purpose of paying legal fees and disbursements in respect of proceedings in the Family Court of Australia and in respect of proceedings in this Court - whether the applicants should be permitted to withdraw monies from the Fund in order to be in a position to post security for the costs of the respondents in certain appeal proceedings in this Court

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    BANKRUPTCY AND INSOLVENCY - petition for sequestration orders on the basis of unpaid costs order - principles to be applied where debtors seek to go behind costs order and decision on assessment on taxation - costs assessment deemed to take effect as a judgment - whether claim that costs order should not have been made to be evaluated as a claim that in truth and reality there was no debt BANKRUPTCY AND INSOLVENCY - whether petition for sequestration orders should be refused on basis that debtors can pay their debts - debtors with entitlement to distributions from superannuation fund - whether those funds should be brought to account in determining whether debtors are able to pay their debts - refusal by debtors to call on superannuation fund for monies to pay costs order - unsuccessful attempt to levy execution - by reason of access to superannuation fund, debtors able to pay their debts - discretion exercised against refusing petition in circumstances where debtors can pay their debts BANKRUPTCY AND INSOLVENCY - alleged claim by debtors against petitioning creditors - proceedings commenced in Supreme Court for damages - alleged claim in those proceedings for amount held in bank account - consideration of circumstances in which claims in other proceedings may be a sufficient cause to dismiss or adjourn petition BANKRUPTCY AND INSOLVENCY - alleged fraud in assessment of costs pursuant to costs order - debtors given notice of incorrect hearing room for assessment - hearing proceeding in absence of debtors - subsequent opportunity to raise written objections - no written objections filed until more than a year later - no error demonstrated in assessment by Registrar - no fraud or miscarriage of justice CORPORATIONS - costs agreement entered into by liquidator in respect of conduct of proceedings involving liquidator and company in liquidation - whether approval required under s 477(2B) of the Corporations Act 2001 (Cth) - approval not required COSTS - indemnity principle - costs agreement by which solicitors can render account but will only require payment if costs order obtained -indemnity principle satisfied COSTS - award of indemnity costs - whether award should have been made without first requiring production of costs agreement - proper approach to assessment of costs where a costs agreement allows for charging above scale

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    TAXATION - appeal from an objection decision of the Commissioner of Taxation - whether certain outgoings were incurred in gaining or producing assessable income and therefore deductible under s 8-1(1)(a) of the Income Tax Assessment Act 1997 (Cth) - whether taxpayer incurred share losses and legal fees in a "business operation or commercial transaction" entered into for the purpose of making a profit - application of principle in Federal Commissioner of Taxation v The Myer Emporium Ltd (1987) 163 CLR 199 TAXATION - whether share losses and legal fees were necessarily incurred in carrying on a business and therefore deductible under s 8-1(1)(b) of the Income Tax Assessment Act 1997 (Cth) - whether taxpayer carried on a business of dealing in shares in a particular company

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review - where the second respondent relied in part on an anonymous letter sent to the Department of Immigration and Border Protection - where the first respondent notified the second respondent that it had received additional information in confidence - whether the second respondent failed to comply with s 424AA of the Migration Act 1958 (Cth) - whether s 438 was engaged by the notification from the first respondent

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    MIGRATION - judicial review of a non-revocation of a mandatory visa cancellation made pursuant to s 501(3A) of the Migration Act 1958 (Cth) - application made pursuant to s 401CA(4) of the Act for revocation of the mandatory visa cancellation - whether the Tribunal failed to consider a claim made by the applicant - whether the alleged claim was sufficiently raised on the material, evidence and submissions before the Tribunal - whether the decision was legally unreasonable - whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant's claims - whether the Tribunal denied the applicant procedural fairness by failing to put its view of her use of an interpreter to her - no jurisdictional error identified - application dismissed

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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 interlocutory applicant is a member of the claim group - where issue is concerning claim group composition - where consent determination scheduled - where it is not in the interests of justice for interlocutory applicant to be joined as respondent - interlocutory application for joinder dismissed

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    ADMINISTRATIVE LAW - urgent application to have name included on ballot paper and list of nominated candidates for by-election - where less than 100 electors entitled to vote at the election for which the candidate was nominated signed nomination form - where no substantial compliance under s 172(2) of the Commonwealth Electoral Act 1918 (Cth) - application dismissed - no order as to costs

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    PRACTICE AND PROCEDURE - ex parte application for freezing orders - good arguable case - danger that a prospective judgment will be unsatisfied - real risk of removal or dissipation of assets - balance of convenience lies in favour of making freezing order

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    PRACTICE AND PROCEDURE - leave to file cross-claim and application for stay of liquidator's action - liquidator's proceeding already set down for hearing - proposed application unnecessary and would interfere with the orderly administration of the winding up - untenable claims agitated in cross-claim - order that cross-claim be struck out

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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 - orders made

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    PRACTICE AND PROCEDURE - interlocutory injunction - where applicant alleges that product supplied by second respondent to third party was developed using applicant's information or resources - strength of prima facie case - balance of convenience and impact on third party - application dismissed

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    PRIVATE INTERNATIONAL LAW – consideration of an application for a final anti suit injunction – consideration of an application for final relief in respect of other pleaded causes of action – consideration of each application in circumstances where the respondent has elected not to appear or respond to the Australian proceedings

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