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Lastest Judgments from the Federal Court

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    CONSUMER LAW - product safety of consumer goods - alleged contraventions of product safety standards - where respondent admitted contraventions - where parties prepared statement of agreed facts and jointly proposed declarations and a pecuniary penalty - whether declarations and proposed orders appropriate - proposed declarations and orders made

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    INSURANCE - application under s 193 of the Life Insurance Act 1995 (Cth) (Act) for confirmation of a scheme transferring life insurance business - first Court hearing - where scheme proposes an intra-company transfer of a life insurance business - whether pursuant to s 191(5) of the Act the Court should dispense with the requirement to comply with s 191(2)(c) of the Act - application allowed.

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    COSTS - application for a lump sum costs order - principles relevant to the assessment of the appropriateness of a lump sum costs order - where the circumstances warrant the making of a lump sum costs order - quantification of the lump sum costs order - where the primary objections to the making of a lump sum order were objections applicable to taxation processes

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    PRACTICE AND PROCEDURE - mandatory interlocutory injunction - competition law - intermodal and steel rail linehaul services - interstate market - Queensland market - principal understanding - provisions with purpose or likely effect of substantially lessening competition - acquisition or control of Queensland rail terminal - contraventions of ss 45 and 50 of Competition and Consumer Act 2010 (Cth) - injunction sought to require carrying on of Queensland intermodal business - exceptional circumstances - injunction granted - injunction sought to refrain from dealing with customers or employees of a competitor - injunction refused

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    PRACTICE AND PROCEDURE - application for summary dismissal - where the applicant had applied for judicial review of four decisions of the Australian Information Commissioner - where the Commissioner sought summary dismissal of the whole application - whether the application should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) - whether the applicant has no reasonable prospect of successfully prosecuting the proceeding - whether there is a real question of contested law or fact that should be decided at trial

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    PRIVILEGE - legal professional privilege - whether emails and attachments sent by a third party to a lawyer for the purpose of facilitating legal advice to a client are subject to legal professional privilege - consideration of the dominant purpose of the emails and their attachments -whether any privilege has been waived

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    INDUSTRIAL LAW - National Employment Standards - entitlement to annual leave in Div 6 of Pt 2-2 of the Fair Work Act 2009 (Cth) ("FW Act") - s 86 of the FW Act which provides that Div 6 "applies to employees, other than casual employees" - meaning of casual employee in s 86 of the FW Act - whether employee's claim for annual leave excluded because the employee was a casual employee within the meaning of s 86 -whether "casual employee" has its legal meaning or an asserted specialised industrial meaning, namely, a person designated to be such an employee by the applicable industrial instrument - discussion of meaning of the term "casual employee" - discussion of whether there is a uniformly understood specialised meaning of the expression "casual employee" referable to the use of that term in industrial awards - where asserted specialised meaning would provide incomplete meaning to the expression "casual employee" because does not address "award/agreement free employees" - whether undefined single expression intended to have a dual or compound meaning - discussion of the statutory context and purpose of paid annual leave as provided for under the National Employment Standards - discussion of the historical statutory application and judicial consideration of the term "casual employee" - whether the term "casual employee" has acquired a legal meaning - discussion of the interaction between the National Employment Standards and a modern award or an enterprise agreement - consideration of the expression "long term casual employee" as defined in s 12 of the FW Act - whether employment "on a regular... basis" means constancy of work or regularity of hiring - whether regular employment is necessarily inconsistent with the characterisation of the employment as casual - discussion of the indicia of casual employment - whether indicia identified by the authorities excluded by the statutory context of Div 6 of Pt 2-2 of the FW Act - casual employment distinguishable from full-time and part-time employment - whether nature of the employment as casual employment is to be objectively assessed to take account of its real or true character - significance of the absence of an advance commitment to continuing and indefinite work to the characterisation of an employment as casual employment - whether the payment of a casual loading or employment by the hour or on an hour's notice determinative of casual employment INDUSTRIAL LAW - employee employed under transitional instrument ("Agreement") - whether employee entitled to annual leave under the Agreement - whether employee excluded from entitlement to annual leave under the Agreement because a casual employee - meaning of casual employee under the Agreement - whether by providing that the employer shall inform the employee of the status of his or her engagement the Agreement provides that a casual employee is a person designated to be such by the employer - alternatively whether casual employee intended to have its ordinary legal meaning - applicable principles for the interpretation of industrial agreements INDUSTRIAL LAW - pecuniary penalties for failure to provide entitlements to annual leave under the FW Act and under an industrial agreement - where contravention not deliberate - whether pecuniary penalty appropriate because the contravener had failed to closely consider the legality of the employment arrangements made - whether primary judge's finding that close consideration had been given was erroneous - appellate correction of sentence where a mistake as to a material fact STATUTORY INTERPRETATION - statutory interpretation of the term "casual employee" in s 86 of the FW Act - principles regarding the interpretation of an undefined term - whether an undefined single expression was intended to have a dual or compound meaning - presumption that where words have acquired a legal meaning they are read with that meaning unless a contrary intention clearly appears - presumption that the same term appearing in different parts of a statute should be given the same meaning - presumption that where the Parliament repeats words which have been judicially construed it is intended that the words bear the meaning already attributed to them - whether Parliament intended that the words "casual employee" in s 86 be used in their ordinary sense, their legal sense or a specialised non-legal or technical sense

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    COSTS - whether Calderbank offer expressed to be inclusive of costs was unreasonably rejected - whether there should be an apportionment of costs based on success or failure on issues at trial - claims arise from a common substratum of facts. Held: apportionment of costs not appropriate.

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    PRACTICE AND PROCEDURE - application for further discovery - application for leave to administer interrogatories - consideration of principles - applications granted in part

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    TRADE MARKS - what trade mark was in fact used by the respondent - trade marks similar - whether deceptively similar - where no actual confusion - whether applicant had continuously used its trade mark before the priority date - whether use was authorised use under the control of applicant for the purposes of ss 7 and 8 of the Trade Marks Act 1995 (Cth) - if so, whether, for the purposes of s 58A, the respondent first used the similar trade mark before the applicant first used its trade mark - whether honest concurrent use of the two trade marks or "other circumstances" for the purposes of s 44(3) - exercise of s 44(3) discretion to accept application for registration, subject to conditions or limitations - whether, for the purposes of s 59, applicant not intending to use the trade mark in Australia in relation to the goods and/or services specified in the application - application under s 88 to rectify the Register by cancelling the registration of a trade mark - whether application made by an aggrieved person - whether any of the grounds established on which the registration of the trade mark could have been opposed - whether the ground established that because of the circumstances applying at the time when the application for rectification was filed, the use of the trade mark was likely to deceive or cause confusion - whether discretion under ss 88 and 89 should be exercised against rectification

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    PRACTICE AND PROCEDURE - application for leave to appeal against decision summarily dismissing in rem claim against a vessel - where proceeding dismissed after plaintiffs informed the Court that they could not proceed with case - consideration of principles of res judicata - whether final judgment must be decided "on the merits" PRACTICE AND PROCEDURE - application for leave to appeal against decision refusing an injunction to prevent the removal or alienation of vessel - claim of urgent provisional relief under UNCITRAL Model Law on Cross-Border Insolvency based on s 588FF of the Corporations Act 2001 (Cth) - consideration of nature of claim under s 588FF - whether sale of ship was an uncommercial transaction - leave to appeal granted - matter remitted for further consideration by primary judge

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    HUMAN RIGHTS - disability discrimination - where the applicant suffers from social communication disorder, paranoid personality disorder and attention deficit/hyperactivity disorder - where the applicant claimed to require an assistance animal due to his disabilities - where the applicant's dog, Boofhead, at the relevant time had a trainee licence and accompanied him to the respondent's facilities and when he made use of the respondent's services - whether Boofhead was an assistance dog for the purposes of the Disability Discrimination Act 1992 (Cth) (DD Act) ss 4, 8 and 9 - whether the respondent prevented the applicant and/or his dog from using its facilities and services and otherwise adversely treated him because of his dog, his disability per se or because of behaviour that was a symptom or manifestation of his disability - whether the alleged incidents amounted to unlawful direct or indirect discrimination for the purposes of the DD Act ss 5, 6, 23, 24 and 27 - application allowed in part.

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    MIGRATION - appeal from decision of Federal Circuit Court of Australia to dismiss application for judicial review - whether Immigration Assessment Authority had fallen into jurisdictional error - where primary judge dismissed application - where no error on part of primary judge particularised or established - appeal dismissed

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    COSTS - where costs should follow the event - where proceeding against the Commissioner of the Australian Federal Police dismissed - entitled to costs

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    CORPORATIONS - application of the Registrar of Aboriginal and Torres Strait Islander Corporations regarding contraventions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - where second respondent admits to the contraventions - where question addressed is what penalties should be imposed on the second respondent - where penalties proposed by the parties considered appropriate being declarations of contravention, disqualification, compensation and pecuniary penalty

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    COSTS - where primarily successful party should have high percentage of its costs

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    ADMINISTRATIVE LAW - application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) of decision of Comcare - where Comcare conceded its decision was affected by legal error - where Comcare conceded rules of natural justice breached - decision set aside and referred back to decision-maker to be dealt with according to law - where costs in dispute - where applicant self-represented - no costs order made

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    MIGRATION - appeal from Federal Circuit Court of Australia - application to further amend notice of appeal to raise and rely only on three grounds of judicial review which were not before the primary judge - Held: leave refused, appeal dismissed

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