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Lastest Judgments from the Federal Court

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    TRADE MARKS - application for judicial review of a decision of the Registrar - where an application for removal of trade marks had been filed - where the owner of the trade marks did not file a notice of intention to oppose within the prescribed period - where the owner sought an extension of time to file a notice of intention to oppose - where the Registrar granted the extension of time (the Decision) - whether the Decision was authorised by the Trade Marks Regulations 1995 (Cth) or involved an error of law - whether the Registrar had jurisdiction to make the Decision - application for judicial review dismissed

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    PRACTICE AND PROCEDURE - interlocutory application for summary judgment in respect of all or part of a proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth) - principles relevant to summary judgment applications - whether no reasonable prospect of success in applicant's claim that "reprisal action" was taken against her under s 13 of the Public Interest Disclosure Act 2013 (Cth) ("PID Act") - whether claim under the PID Act is an abuse of process because it is being pursued for collateral purposes - principles applicable to establishing abuse of process - application for summary judgment dismissed

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    MIGRATION - application for an extension of time to appeal from orders of the Federal Circuit Court of Australia - delay of some 130 days - whether satisfactory explanation for the delay - whether sufficient merit in ground of appeal that primary judge erred in failing to find jurisdictional error on the part of the Tribunal - whether Tribunal failed to address the applicant's claims

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    MIGRATION - application for judicial review of a decision of the Minister not to revoke a visa cancellation - applicant's visa cancelled on character grounds - where applicant has substantial criminal record - whether Minister's decision was illogical or legally unreasonable because of a failure to consider the applicant's health in assessing the risk of re-offending - whether jurisdictional error arose by failure to consider possibility that the applicant might be indefinitely detained because of his health

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    MIGRATION - application for judicial review of a decision of the Minister not to revoke a visa cancellation - applicant's visa cancelled on character grounds - where Minister found the applicant posed an unacceptable risk to the Australian community - whether Minister failed to make enquiries beyond an examination of a Police Certificate - whether Minister failed to complete his statutory task or made findings which were not open to him

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    COMPETITION - collusive arrangement - exclusive dealing - respondent found to have contravened s 45 of the Trade Practices Act 1974 (Cth) - enforcement and remedies - application for agreed declarations and pecuniary penalties -consideration of principles - proposed declarations made and penalties imposed

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    ADMINISTRATIVE LAW - judicial review - whether delegate of Protected Zone Joint Authority (the Authority) committed jurisdictional error when imposing new condition on commercial fishing licences prohibiting use of particular equipment under s 22 of Torres Strait Fisheries Act 1984 (Cth) (Fisheries Act) - whether delegate breached common law rules of procedural fairness and or failed to comply with notice requirements under s 24HA(7) of Native Title Act 1993 (Cth) (Native Title Act) - where licensees required to send submissions regarding proposed decision to officer of the Authority who was on leave - where delegate failed to read or consider submission by applicant before making decision - whether Court should exercise discretion to decline relief under s 16 of Administrative Decisions (Judicial Review) Act 1977 (Cth) because delegate contended that he would have made same decision if submission considered - application granted - decision quashed NATIVE TITLE - statutory interpretation - future act within meaning of s 233(1) of Native Title Act - whether Div 3 of Pt 2 of Native Title Act a code of all native title holders' rights to challenge validity of decisions affecting native title - where future act, being decision to impose condition on commercial fishing licence - where affected licensees included both native title holders and others - where decision to impose condition affected by jurisdictional error - whether s 24HA(3) of Native Title Act validated decision of delegate in respect of native title holder licensees as a future act under s 233(1) despite delegate not complying with common law procedural fairness or Fisheries Act requirements - consideration of meaning of future act that "validly" affects native title under s 233(1) - held: ss 24HA(3) and 233(1) inapplicable to decision invalidated by jurisdictional error TRUSTS AND TRUSTEES - whether applicant had standing to challenge delegate's decision - where applicant incorporated under Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) for purpose of holding native title rights and interests on trust for native title holders under s 56(2) of Native Title Act

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    MIGRATION - skilled visa application - application for extension of time to appeal from decision of Federal Circuit Court - whether adequate explanation for delay - whether prejudice to respondents if extension granted - whether proposed grounds of appeal have sufficient prospects of success to warrant exercise of discretion to extend time

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    PRACTICE AND PROCEDURE - service out of jurisdiction - application to serve interlocutory application outside of Australia - whether requirements for service out of the jurisdiction satisfied

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    PRACTICE AND PROCEDURE - Application for pre-judgment interest pursuant to s 51A(1) of the Federal Court of Australia Act 1976 (Cth) - whether application was required before judgment was delivered - the time from which interest should be payable - application granted

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    PRACTICE AND PROCEDURE - application for further and better particulars of statement of claim - application in the alternative to strike out parts of pleading alleging "conscious maladministration" and liability on the basis of Barnes v Addy (1874) LR 9 Ch App 244 - where claims of "conscious maladministration" properly characterised as claims in the nature of tort of misfeasance in public office - where no proper factual basis for allegation that Commissioner had necessary state of mind for the tort - where basis of Commissioner's liability for conduct and states of mind of other people not properly pleaded - where pleading relies on impermissible aggregation of the states of mind of a number of people to attribute to Commissioner - where pleading unclear and ambiguous - where no basis for allegation that Commissioner was knowingly involved in fraudulent scheme - where parts of pleading alleging misfeasance in public office and liability based on Barnes v Addy struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) PRACTICE AND PROCEDURE - application for leave to file amended statement of claim - strike out application treated as if it was directed at proposed amended statement of claim - where parts of amended pleading alleging misfeasance in public office and liability based on Barnes v Addy struck out - leave to file further amended statement of claim refused PRACTICE AND PROCEDURE - application for discovery - where categories of discovery sought relate to parts of pleading to be struck out - where application for discovery deferred pending determination of strike out application

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    MIGRATION - appeal from Federal Circuit Court of Australia - judicial review by that Court of decision of the Administrative Appeals Tribunal decision refusing prospective marriage visas - Tribunal noting review applicant had not provided evidence of hotel stays in Cambodia with her intended spouse - hotel receipts subsequently provided - Tribunal finding that although receipts were dated different years they appeared to be in the same handwriting and doubting genuineness of the receipts and giving little weight to them - whether genuineness of the receipts was an issue that should have been raised with review applicant either pursuant to s 360 of the Migration Act 1958 (Cth) or by virtue of procedural fairness under the general law

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    CORPORATIONS - native title - Corporations Act 2001 (Cth) s 237 - derivative action - whether leave should be granted to applicant native title holders to bring proceeding on behalf of respondent company - where company established as charitable trustee to distribute benefits of Indigenous Land Use Agreement to native title claim groups including the applicants - whether probable company would not bring proceedings under s 237(2)(a) - where applicants alleged directors of company committed or were knowingly concerned in breach of fiduciary duty by misappropriating trust moneys - whether applicants acting in good faith under s 237(2)(b) - whether in best interests of company as trustee that applicants be granted leave under s 237(2)(c)

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    PRACTICE AND PROCEDURE - application for leave to amend particulars of quantum - where the proposed amendments seek to change the cross-claimant's damages claim for copyright infringement and breach of confidence from lost profits to a claim for wasted expenditure or, in the alternative, notional royalties - where the amendment is sought after the close of evidence at trial - application refused

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    MIGRATION - appeal from a judgment of the Federal Circuit Court ("the FCC") - where the FCC had dismissed an application for judicial review of a decision of the Refugee Review Tribunal - where the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa - whether the FCC had erred in failing to find that the Tribunal had committed a jurisdictional error - whether the Tribunal had erred by failing to consider whether, upon his return to Sri Lanka, a member of the appellant's family would be able to act as guarantor so that he would be released on bail - whether the Tribunal had failed to consider the risk to the appellant of being followed up and suffering torture in his home area as part of the general pattern of such abuse - whether the Tribunal had misapplied the tests for whether there was a "real chance" of persecution or a "real risk" of significant harm

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    MIGRATION - appeal from Federal Circuit Court of Australia - judicial review of decision of the Administrative Appeals Tribunal (Tribunal) - whether error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal - appellants absent when appeal called on for hearing - Held: appeal dismissed

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    COMPENSATION - appeal on a question of law under the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal - where the Tribunal had affirmed a decision of Comcare to refuse the applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether the Tribunal had erred by finding that the applicant's medical condition began on 21 March 2014 - whether the Tribunal erred by finding that his medical condition was caused by "reasonable administrative action taken in a reasonable manner" in respect of his employment" under s 5A(1) of the Act

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    MIGRATION - Subclass 457 visa application - appeal from decision of Federal Circuit Court dismissing application for review of Tribunal decision - where Federal Circuit Court had made show cause order - where appellants indicated to primary Judge that they would not allege fraud or that their visa application was never validly made - where the appellants sought leave to rely on grounds that were abandoned before the primary Judge - requirements of pleadings and evidence where appellants allege fraud - whether leave to rely on ground pertaining to fraud should be granted MIGRATION - Subclass 457 visa application - appeal from decision of Federal Circuit Court dismissing application for review of Tribunal decision - where Tribunal made a finding that the appellants would not suffer financial hardship if returned to China - whether the appellants were denied procedural fairness in relation to issues of financial hardship - whether there was a logical and rational basis for Tribunal's finding in relation to the appellants' hardship

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    MIGRATION - appeal from Federal Court of Australia - where appellant's protection (class XA) visa cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) - where primary judge dismissed application for judicial review of Administrative Appeals Tribunal's decision - where Tribunal affirmed Minister's delegate's decision not to revoke visa cancellation under s 501CA(4) - whether primary judge erred in findings regarding the Tribunal's reliance on an International Treaties Obligation Assessment - no jurisdictional error demonstrated - where appellant sought to raise additional grounds not contained in grounds of appeal - leave refused - appeal dismissed

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