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Heldberg v Rand Transport (1986) Pty Ltd [2018] FCA 1141

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INDUSTRIAL LAW - claim for damages for breach of employment contract - interpretation of employment contract - claim for an additional severance payment - claim for incentive scheme payments - claim relating to implied term of reasonable notice - whether s 117 of the Fair Work Act 2009 (Cth) precludes the implication of a term requiring reasonable notice of termination into an employment contract - judgment in favour of Applicant with respect to some incentive scheme payments only. CONSUMER LAW - misleading or deceptive conduct claim - whether the Applicant can establish that he suffered loss - claim dismissed.

Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCAFC 119

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INSURANCE - Defence Costs extension - payable until wrongful act determined by judgment, adjudication or admission - whether implication that insurer prevented from relying on rights consequent upon insured's fraudulent non-disclosure pending judgment, adjudication or admission of wrongful act CONTRACT - Insurance policy - agreement to pay defence costs until alleged wrongful acts not covered by policy are determined by judgment adjudication or admission - whether insurer prevented from avoiding policy for fraudulent non-disclosure - whether party able to contract out of the consequences of their own fraud

AAM15 v Minister for Immigration and Border Protection [2018] FCA 1143

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MIGRATION - protection visa application - appeal against dismissal by Federal Circuit Court of application for judicial review of Tribunal decision - consideration of claims under ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act) - requirements of natural justice in Tribunal - requirements of s 425 of the Act - whether the Tribunal has a duty to inquire in discharging natural justice obligations - requirements of ss 424A and 424AA of the Act

Veeraragoo v Goldbreak Holdings Pty Ltd [2018] FCA 1148

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PRACTICE AND PROCEDURE - application for default judgment against second respondent under r 5.23 Federal Court Rules 2011 (Cth) - where proceedings concern the applicant's dismissal from employment in contravention of Fair Work Act 2009 (Cth) - whether relief including declaratory relief ought to be granted - failure to comply with orders - application granted

ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149

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MIGRATION - appeal from decision of Federal Circuit Court of Australia - provision of bogus document - whether delegate held reasonable suspicion - where visa refused under s 91WA of the Migration Act 1958 (Cth) - where delegate also considered protection obligations and Federal Circuit Court found error - where leave required to raise grounds not raised before Federal Circuit Court - no merit in grounds - appeal dismissed

Anderson v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1154

Messer v Lotus Securities Limited [2018] FCA 1147

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CORPORATIONS - unconscionable conduct under ss 12CA and/or 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) - scope of statutory unconscionability under s 12CB - whether inference could be drawn that respondent acted unconscionably - whether applicant suffered cognitive impairment - whether applicant's cognitive impairment apparent to persons without medical training - when applicant's cognitive impairment was apparent - whether applicant had capacity to sign legal documents - non-disclosure of true financial position of company procuring investments DAMAGES - whether loss claimed has been established - measure of damages

Gropel v Comcare [2018] FCA 1146

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ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - liability to pay compensation under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - when "disease" suffered within meaning of the term as defined in section 5B - whether exclusion in definition of "injury" under section 5A engaged - nature of causal connection required by exclusionary phrase in section 5A(1)

Song v Commissioner of Taxation [2018] FCA 840

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PRIVILEGE - Claim of legal professional privilege - application in personal capacity - application in capacity as company director - whether advice given was legal or commercial in character - whether dominant purpose of documents was to give or obtain legal advice - whether third party was agent of applicant for purposes of communications made to obtain or receive legal advice - whether the person from whom advice was sought or given was a qualified foreign lawyer - whether advice provided by a foreign lawyer provided in that capacity - whether inference could be drawn of a person providing legal advice under supervision of a qualified lawyer

Imran v Minister for Immigration and Border Protection [2018] FCA 1137

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MIGRATION - application for leave to appeal - applicant held tourist visa with condition 8503 'no further stay' - where applied for medical treatment visa - where no application for waiver of condition - where delegate found application for medical treatment visa invalid - where primary judge found no error in delegate's approach - no tenable grounds of appeal - application for leave refused

Alrjoob v Minister for Home Affairs [2018] FCA 1144

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MIGRATION - application for Partner (Temporary) (Class UK) visa - Tribunal found appellant did not satisfy criteria in criteria 3001(1) of the Migration Regulations 1994 (Cth) - no "compelling reasons" as to why criteria should not apply - political situation in Jordan - grounds of appeal identified no error in decision of primary Judge - appeal dismissed

Cheung v Burness (Trustee) [2018] FCA 1145

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BANKRUPTCY AND INSOLVENCY - appeal from decision of the Federal Circuit Court - application for extension of time in which to appeal orders - application for annulment of bankruptcy - discretion to annul bankruptcy under section 153B of the Bankruptcy Act 1966 (Cth) - principles applicable to exercise of the discretion - principles applicable to granting extension of time to appeal - where lengthy delay in bringing application to appeal - adequacy of explanation for delay

Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) (formerly EBS & Associates Pty Ltd) [2018] FCA 1140

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ADMINISTRATIVE LAW - application for judicial review of decision by Administrative Appeals Tribunal to issue direction under s 37(2) of Administrative Appeals Tribunal Act 1975 (Cth) - where direction compels applicant to produce internal legal advices prepared in relation to respondent - whether Tribunal erred in forming opinion that the internal legal advices "may be relevant" to its review - whether asserted error was a jurisdictional error or an error within jurisdiction - whether subjective material can be relevant to objective assessment - held: basis on which Tribunal formed an opinion that legal advices may be relevant was not open to it - held: Tribunal's decision to issue direction was made without lawful formation of the opinion giving rise to jurisdiction and thus constituted jurisdictional error

DRB18 v Minister for Home Affairs [2018] FCA 1163

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NEGLIGENCE - application for interlocutory injunction requiring the provision to the applicant of urgent medical treatment - duty of care owed by respondents to an applicant brought to Nauru under the Migration Act 1958 (Cth) PRACTICE AND PROCEDURE - principles relevant to the grant of an interlocutory injunction - whether a serious question to be tried - where the balance of convenience lies - whether action proposed by respondents dispenses with the need for orders - injunction granted to require the respondents to provide the applicant with urgent medical treatment

Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162

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MIGRATION - where the Assistant Minister determined not to revoke a decision under s 501(3A) of the Migration Act 1958 (Cth) (Act) to cancel the applicant's visa pursuant to s 501CA(4) of the Act - whether the Assistant Minister's decision was vitiated by jurisdictional error in that the Minister made findings for which there was no evidence - whether the Assistant Minister's decision was illogical or irrational - whether the Assistant Minister's decision was vitiated by failure to give proper, genuine and realistic consideration to relevant factors - application allowed

Australian Securities and Investments Commission v Linchpin Capital Group Ltd [2018] FCA 1104

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CORPORATIONS - managed investment scheme - ASIC application to appoint receivers - nature and extent of contraventions - scope of assets over which receiver appointed

Sesalim v Secretary, Department of Social Services [2018] FCA 1159

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SOCIAL SECURITY - disability support pension - Table 5 of the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ("Determination") - consideration of nature of the task of the Administrative Appeals Tribunal ("Tribunal") in making an assessment under the Impairment Tables - whether the Tribunal was required to compare the examples given for the relative criteria under the descriptors for each impairment rating in Table 5 of the Impairment Tables ADMINISTRATIVE LAW - VID 1297 of 2016 - appeal regarding a decision of the Tribunal to cancel the applicant's disability support pension in 2016 - whether the Tribunal erred by failing to take into account material relevant to an assessment of whether the applicant's spinal condition was "permanent" under the SS Act - whether the Tribunal erred by failing to understand or carry out its statutory task or, alternatively, failed to consider a central matter in assessing whether the applicant's spinal condition was "permanent" - whether the Tribunal took into account irrelevant consideration in assessing the applicant's mental health impairment as "moderate" in accordance with Table 5 of the Impairment Tables in the Determination - whether the Tribunal made adverse credit findings against the applicant - whether the Tribunal failed to properly engage with medical evidence regarding the applicant's mental health condition - whether the reasons provided by the Tribunal were sufficient to discharge its statutory obligation to provide reasons ADMINISTRATIVE LAW - VID 166 of 2017 - appeal regarding a decision of the Tribunal that the applicant qualified for a disability support pension in 2017 - whether the Tribunal erred in its assessment that the applicant's mental health condition had a severe functional impact on his activities and warranted a "severe rating" in accordance with Table 5 of the Impairment Tables in the Determination because: the Tribunal's reasons were inadequate; the Tribunal's reasons were not logically probative or did not meet the statutory criterion; the Tribunal did not follow the mandated statutory procedures or task; and the Tribunal's findings were legally unreasonable.

United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2018] FCA 1161

CZY16 v Minister for Immigration and Border Protection [2018] FCA 1171

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MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing the application to that court, with costs - that application was for judicial review of the decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Protection (Class XA) visa - application to raise, as a sole ground of appeal, a ground not raised before the Federal Circuit Court of Australia - whether expedient in the interests of justice to permit the ground to be raised - whether any self-evident merit in the proposed ground that the Administrative Appeals Tribunal made no finding on the appellant's claim that he feared harm in Nepal from Tarun Dal because of demands for money they had made, and would make, because of his wealth

Degning v Minister for Home Affairs [2018] FCA 1152

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MIGRATION - application for judicial review of Minister's decision to cancel applicant's visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) - whether denial of procedural fairness in relation to illegibility of copies of incoming passenger cards or the use to which the Minister may put the content of those cards in finding that the applicant's failure to declare his criminal convictions on those cards was indicative of a further disregard for the law - whether legal unreasonableness in Minister concluding there was a risk that the applicant would offend again in a similar way or by imposing a risk threshold that was outside the range reasonably permitted by the statutory discretion - whether denial of procedural fairness in not contacting the applicant's grandchildren and inviting them to comment on the proposed decision
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