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Lastest Judgments from the Federal Court

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    MIGRATION- whether jurisdictional error on the part of the Tribunal in failing to consider a claim said to arise implicitly from materials provided after hearing but not expressly articulated by the applicant - where Tribunal expressly referred to materials - where Tribunal dealt with substance of claim

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    PATENTS - legal professional privilege/patent attorney privilege - whether implied waiver - application by patentee to amend patent pursuant to s 105 of Patents Act 1990 (Cth) - delay - where patentee alleges that it did not decide that it would be desirable to amend patent until shortly prior to filing of application under s 105 - whether implied waiver arising from patentee's pleaded grounds in support of proposed amendments in relation to advice given to patentee concerning amendments made to patent applications filed in other jurisdictions ; PRIVILEGE - legal professional privilege/patent attorney privilege - whether implied waiver

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    MIGRATION – consideration of a notice of appeal which raises two new grounds not previously agitated before the Federal Circuit Court of Australia – leave given to rely upon the new grounds – consideration of whether the appellant has demonstrated jurisdictional error on the part of the Tribunal having regard to the new grounds

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    BANKRUPTCY AND INSOLVENCY - appeal from Federal Circuit Court dismissing creditor's petitions based on certificates of taxation and costs order made in favour of petitioning creditor against the respondents - where primary judge found in truth and reality no debt due and payable because costs had been incurred by third party - principles to be applied when court invited to go behind a judgment to determine whether in truth and reality there was a debt behind the judgment relied upon as basis for petition - whether a costs agreement existed between petitioning creditor and solicitor acting in proceedings where costs order obtained - no factual error in finding by primary judge - appeals dismissed EQUITY - where primary judge rejected claim that third party paid costs in recognition of an obligation to indemnify petitioning creditor - consideration of matters required to establish a right of subrogation - whether payment by third party of costs discharged obligation to indemnify petitioning creditors - no error by primary judge

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    MIGRATION - Application for leave to appeal a decision of the Federal Circuit Court of Australia - Federal Circuit Court dismissed application for judicial review of a decision of the Administrative Appeals Tribunal pursuant to r 44.12 of the Federal Circuit Court Rules 2011 (Cth) - new grounds - whether the Tribunal misconstrued the evidence - whether the Tribunal failed to assess an integer of the applicant's claim - whether the Tribunal complied with s 424AA and s 424A of the Migration Act 1958 (Cth) - leave to appeal refused

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    PRACTICE AND PROCEDURE - representative proceeding - Part IVA class action and related proceeding by Indian regulator seeking relief on behalf of investors in large 'Ponzi' scheme operated in the Republic of India - questions as to appropriate declaratory and other relief EQUITY - tracing of pooled funds of investors in an Indian "collective investment scheme" being funds transferred from India to Australia and then applied in breach of trust to acquire Australian assets - consideration of recovery of allowance out of trust fund for costs and expenses incurred in getting in trust assets

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    MIGRATION – Appeal from the Federal Circuit Court dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to grant the appellant a protection visa; whether jurisdictional error; leave to add further grounds of appeal not raised before the Federal Circuit Court

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    MIGRATION – appeal from the Federal Circuit Court dismissing an application for judicial review in respect of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to grant the appellant a protection visa

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    MIGRATION – Safe Haven Enterprise visas – fast track reviewable decision – appeal from decision of Federal Circuit Court to dismiss application for review of decision of the Immigration Assessment Authority – whether grounds of appeal impermissibly challenge factual findings of the Immigration Assessment Authority – whether reasons of the Immigration Assessment Authority expose readily apparent legal error

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    MIGRATION – protection visas – appeal from the decision of the Federal Circuit Court to dismiss application for review of a decision of the Refugee Review Tribunal to refuse application for a Protection (Class XA) visa – consideration of nature of appeal to Federal Court – appeal by way of rehearing – whether Appellant identified appellable error – whether Tribunal considered complimentary protection obligations PRACTICE AND PROCEDURE – legal representation – whether right to legal assistance – consideration of circumstances in which a referral should be made for pro bono legal assistance – whether referral to legal assistance should be made

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    MIGRATION – refugees – refugee status assessments – international treaties obligations assessments – appeal from decision of the Federal Circuit Court to dismiss an application for review of the decision of an Assessor that Australia did not owe the Appellant any non-refoulement obligations – consideration of discretion of Minister to permit offshore entry person to make a valid application – whether the Appellant denied procedural fairness

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    INDUSTRIAL LAW - alleged contraventions of s 500 by an official of the Construction, Forestry, Mining and Energy Union at the Parliament Square construction site in Hobart, Tasmania - where the official held entry permits under the Fair Work Act 2009 (Cth) ("the Act") and the Work Health and Safety Act 2012 (Tas) - where the official entered the site on, relevantly, four of occasions in 2015 - whether the first three entries occurred pursuant to the exercise of a right under s 484 - where it was agreed that the last entry occurred pursuant to the exercise of a right under s 494(2) - whether the official was "exercising, or seeking to exercise, rights in accordance with" Part 3-4 of the Act - whether the official acted in an "improper manner" by not complying with notice requirements under s 487, not producing a notice of entry upon request contrary to s 489(2), not holding discussions during meal times or other breaks contrary to s 490(2), not entering only on a day specified in an entry notice contrary to s 490(3), refusing to leave the site when requested, and using foul language - whether the official contravened s 500 of the Act - whether the union should be liable for any contraventions of s 500 by the official via accessorial liability under ss 550(2)(c) and 793 of the Act

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    INDUSTRIAL LAW - where the Australian Building and Construction Commissioner alleged contraventions, by two officers of the Construction, Forestry, Maritime, Mining and Energy Union, of ss 494(1) and 500, respectively, of the Fair Work Act 2009 (Cth) ("the FW Act") - where both officers held entry permits under the Work Health and Safety Act 2012 (Tas) - where only the second officer held a permit under the FW Act - whether the union is liable for any contraventions under s 550 and 793 of the FW Act STATUTORY INTERPRETATION - meaning of "any other right" in s 486 of the FW Act

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    MIGRATION - where certificate issued under 473GB of Migration Act 1958 (Cth) - where appellant unaware of certificate - whether Immigration Assessment Authority failed to consider exercising discretion to disclose information - alternatively whether Immigration Assessment Authority considered but failed to exercise discretion to disclose information - where adverse inference drawn from information - whether legally unreasonable in circumstances

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    CORPORATIONS - application for reinstatement of deregistered company pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) - where deregistered company held interest in partnership on trust - where company wound up and deregistered without retiring from partnership - application granted

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    CORPORATIONS – consideration of an application under s 1322(4)(a) and s 1322(4)(d) of the Corporations Act 2001 (Cth)

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    PRACTICE AND PROCEDURE - discovery - privilege against self-incrimination - privilege against exposure to penalties - where respondent accounting firm objected to production of its audit files, review files and working papers in relation to the relevant engagements - where the applicant's statement of claim alleged contraventions of statutory provisions that were offence provisions and/or pecuniary penalty provisions - applicable principles - whether production of the documents would give rise to a real and appreciable risk of prosecution and/or institution of proceedings for a pecuniary penalty

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    PRACTICE AND PROCEDURE - request for access to documents on the Court file by a non-party - objections by applicant and first respondent in the proceeding to the release of documents - principle of open justice - no basis for the making of suppression or non-publication orders - no basis for refusing leave to access restricted documents - request for access to documents granted

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    CORPORATIONS - liquidator's application for extension of time under s 588FF(3)(b) of the Corporations Act 2001 (Cth) - where deed of release and settlement entered into by former liquidator with first defendant - whether foreshadowed claims maintainable - whether shelf order should otherwise be made

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    MIGRATION - whether denial of natural justice on the part of the Tribunal for allowing hearing to proceed on the papers - denial of natural justice not found - where no request for an adjournment was made - where jurisdictional error on the part of the Tribunal not made out

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