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Lastest Judgments from the Federal Court

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    MIGRATION - appeal from Federal Circuit Court of Australia decision to dismiss application for review of delegate's decision to refuse request to waive visa condition - application for leave to rely on amended notice of appeal - whether proposed grounds meritorious - no failure to take into account medical evidence of appellant's Australian wife's psychological state, or denial of procedural fairness in delegate not informing appellant of unfavourable evaluation of this evidence and inviting comment - no denial of procedural fairness in delegate not informing appellant of insufficiency of evidence regarding risks of return to Pakistan and inviting comment - leave refused - appeal dismissed

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    MIGRATION - appeal from the Federal Circuit Court of Australia - whether the primary judge erred in finding that an assessor who conducted an International Treaty Obligations Assessment in respect of the appellant had not denied her procedural fairness by failing to put country information to her, because the assessor's conclusion was obviously open on the known material - whether the primary judge erred in finding that the appellant suffered no practical injustice because she did not claim to have engaged in the activities or had the profiles referred to in the relevant country information- whether the primary judge erred in finding that the appellant suffered no practical injustice because she did not submit to the primary judge that she would or could have made a submission in response to that country information - Held: appeal dismissed, with costs

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    MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal to refuse application for Australian Citizenship - relief sought under Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B, Judiciary Act 1903 (Cth) - applicant a child under the age of 16 - Tribunal applied executive policy in refusing application - whether Tribunal erred in its construction and application of the policy in its findings concerning the "best interests of the child" - whether aspects of the policy unlawful - whether Tribunal erred by applying policy inflexibly - whether Tribunal made material findings of fact not open on the evidence - application allowed

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    PRACTICE AND PROCEDURE - request by non-party for access of documents on the Court file - restricted documents - objection by the respondent - principle of open justice - reliance on requested documents in open court - no confidentiality orders or suppression orders - no basis for refusing leave to access requested documents

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    DEFAMATION - practice and procedure - application to strike out parts of statement of claim in a defamation action - whether parts of statement of claim should be struck out pursuant to r 16.21(1) Federal Court Rules 2011 (Cth) - whether impugned publication capable of conveying defamatory meanings - where matter best considered after full argument at trial - where reasonably arguable that publication capable of conveying defamatory meanings - application dismissed PRACTICE AND PROCEDURE - application for further and better particulars of statement of claim - where pleadings clear - no justification for order for further and better particulars - application dismissed DEFAMATION - practice and procedure - application to strike out parts of defence to a defamation action pursuant to r 16.21(1) Federal Court Rules 2011 (Cth) - where central hypothesis underlying defences flawed - where pleaded facts do not raise a reasonable defence to claim - where pleadings vexatious, frivolous, evasive, ambiguous, likely to cause prejudice and embarrassment - where defences of justification, contextual truth, qualified privilege, honest opinion and fair comment, which rely on the central hypothesis should be struck out - where pleaded facts not reasonably capable of being relevant to the mitigation of damages - where allegation of "abuse of process" does not raise a reasonable defence to claim - where proper course to seek summary judgment pursuant to r 26.01(1)(d) or strike-out pursuant to r 16.21(1)(f) Federal Court Rules 2011 (Cth) - where entire defence to be struck out on the basis that residue would be confusing - leave to re-plead granted

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    CORPORATIONS - compulsory acquisition of securities by 90% holder - applicable principles - whether plaintiff satisfied standing requirements - whether terms set out in compulsory acquisition notice gave a fair value for the securities - compulsory acquisition approved

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    INCOME TAX - application for extension of time and appeal from a decision of the Administrative Appeals Tribunal - where applicant submitted that he was a temporary resident until February 2009 and that the Tribunal had failed to consider whether s 768-910 of the Income Tax Assessment Act 1997 (Cth) applied to render the disputed deposits non-assessable non-exempt income - where the potential application of this provision was not raised before the Tribunal

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    REPRESENTATIVE PROCEEDINGS - settlement approvals of six related proceedings pursuant to s 33V of Federal Court of Australia Act 1976 (Cth) - gross settlement of $215 million reasonable but subject to proposed deductions of $92 million to a litigation funder and over $20 million to lawyers -whether the net return to group members means that the proposed settlement is fair and reasonable and in the interests of group members - consideration of the power of the Court to interfere with contractual promises made by group members to litigation funder and circumstances as to whether such a power should be exercised - observations on the need for independent scrutiny of costs by a Referee - discussion as to the need to avoid unnecessary multiplicity of proceedings - broad confidentiality orders being sought when a commercial enterprise uses the public processes of the Court and the importance of open justice considerations - discussion of the need for caution in extinguishing the claims of any group members by exclusion from the settlement - settlement approved

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    MIGRATION - appeal from orders of a judge of the Federal Court of Australia - decision by Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke original decision under s 501(3A) - appellant convicted of using a carriage service to access child pornography material and possessing child exploitation material for which he was sentenced on each charge to concurrent terms of 20 months imprisonment - where Minister not satisfied that there was another reason why the original decision should be revoked - whether primary judge erred in concluding that the Minister's failure to take into account the Community Protection (Offender Reporting) Act 2004 (WA) did not involve jurisdictional error

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    NATIVE TITLE - non-claimant application - where application not "unopposed" for the purposes of s 86G of the Native Title Act 1993 (Cth) - whether no native title rights or interests exist in the land - whether any native title rights that might have existed have been extinguished

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    MIGRATION - appeal from judgment of Federal Circuit Court - partner visa - new grounds sought to be advanced on appeal -whether leave should be granted to rely on new grounds - whether Tribunal erred in consideration of "compelling reasons" to waive visa criteria - whether Tribunal's decision rationally based - whether hearing rule complied with - appeal allowed in part

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    MIGRATION - application for leave to appeal - whether ground stated in draft notice of appeal has reasonable prospects of success - application dismissed

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    PRACTICE AND PROCEDURE - s 33V application - settlement approved - where claims of group members advanced in three representative proceedings could have been advanced in one proceeding - discussion as to the need to have regard to the width of s 33C in bringing representative proceedings and paying sufficient regard to the case management dictates of Part VB

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    SHIPPING AND NAVIGATION - where main engine breaks down during voyage - whether owners exercised due diligence between and at commencement of voyage under Art 3(1) of amended Hague Rules ADMIRALTY - carriage of goods by sea - whether charterparty or bill of lading is contract of carriage ADMIRALTY - charterparty - provision for substitution of vessel - whether substitution clause effects novation of charterparty with owners of substitute vessel EVIDENCE - where party destroys or fails to preserve real evidence consisting of damaged machinery - where court orders retention - whether all possible adverse inferences should be drawn against party EVIDENCE - proof of reasonableness of settlement - where cargo owner settles claim by salvor in respect of cargo owner's liability for salvage - factors to be considered - where shipowner does not explain to cargo owner how event giving rise to salvage occurred SHIPPING AND NAVIGATION - salvage - 1989 Convention on Salvage - whether vessel was in danger - factors relevant to quantification of salvage award EVIDENCE - where witness disbelieved - whether positive inference can be drawn to opposite of false story SHIPPING AND NAVIGATION - transhipment - whether cargo owner entitled to claim transhipment costs of part of cargo while vessel repaired at a port not being the port of discharge - where transhipment costs incurred due to ship owner's breach of obligation in contract of carriage to exercise due diligence before and at commencement of voyage to make ship seaworthy under Art 3(1) of amended Hague Rules - where cargo owner had signed letter of indemnity - construction of letter of indemnity ADMIRALTY - general average - York-Antwerp Rules, rule D - whether shipowner at fault can claim contribution to general average expenses where ship unseaworthy

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    DEFAMATION - justification - whether justification of imputation that person was believed on reasonable grounds to be guilty discloses reasonable defence to imputation that person guilty - whether publisher can rely on less serious meaning as defence of justification of more serious meaning - Polly Peck defence - Hore-Lacey defence - whether differently nuanced meaning capable of providing defence of justification DEFAMATION - particulars of justification - allegations of party's knowledge and state of mind - requirement of particulars providing same particularity as indictment

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    PRACTICE AND PROCEDURE - application for leave to appeal from judgment and orders of Federal Circuit Court of Australia - whether decision of primary judge attended by sufficient doubt to warrant reconsideration by appellate court - application dismissed MIGRATION - application for Medical Treatment (Visitor) (Class UB) visa - where applicant failed to satisfy cl 602.213(5) of Schedule 2 to the Migration Regulations 1994 (Cth) - where applicant failed to satisfy criterion 3001 of Schedule 2 to the Migration Regulations 1994 (Cth) ADMINISTRATIVE LAW - judicial review - procedural fairness - where primary judge found no jurisdictional error

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    ESTOPPEL – res judicata – competency of appeal – whether order setting aside originating application for want of jurisdiction interlocutory or final – where legal effect of primary judge’s order finally determined rights of parties – where primary judge held justiciable controversy between parties extinguished by Fair Work Commission decision in arbitration under ss 595 and 739 of Fair Work Act 2009 (Cth) INDUSTRIAL LAW – statutory interpretation – construction of enterprise agreement – whether employee organisations noted by the Fair Work Commission as “covered” by enterprise agreement under Fair Work Act 2009 (Cth) ss 54 and 201(2) have standing in own right as party to a dispute under dispute resolution procedure mandated by s 186 – consideration of meaning of “workplace right” under s 341 – where dispute as to interpretation by Fair Work Commission as arbitrator of enterprise agreement clause – where employee organisation when initiating dispute resolution process did not specifically identify affected employees – where employer in arbitration submitted that it accepted Fair Work Commission had jurisdiction to resolve dispute COSTS – Fair Work Act 2009 (Cth) s 570(1) – whether proceeding “in relation to a matter arising under” the Fair Work Act 2009 (Cth) – where primary judge set aside originating application claiming relief under Fair Work Act 2009 (Cth) for want of jurisdiction and ordered applicant to pay respondent’s costs on basis no matter arose under Act

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    MIGRATION - application for Student (Class TU) (subclass 572) visa - failure to satisfy cl 572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) - failure to satisfy "genuine temporary entrant" criterion - allegation of breach of s 360 Migration Act 1958 (Cth) - allegation of failure to take into account relevant considerations in cl 572.223(1) - where appeal grounds identical to grounds of review in court below - where appellant unable to identify any error in judgment of primary judge - appeal dismissed ADMINISTRATIVE LAW - judicial review - allegation of breach of procedural fairness - allegation of failure to take into account relevant considerations - where primary judge found no jurisdictional error

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