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Lastest Judgments from the Federal Court

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - whether primary judge erred in dismissing an application for judicial review - whether Administrative Appeals Tribunal failed to consider relevant claims, integers of claims or information - whether Tribunal's findings were illogical or irrational

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    CONTRACT - proper construction of interest provision in consumer contract - whether it authorises respondent to take and use interest earned on client funds for its own purposes - whether breach of trust or breach of fiduciary duty - held contract authorises respondent's actions and no breach CONSUMER LAW - Australian Consumer Law s 24(1) - meaning of an unfair term - relevant considerations - whether a term is unfair if it authorised respondent to take and use interest earned on client funds for its own purposes - discussion of matters relevant to establish an unfair term including meaning of a "significant imbalance in the parties' rights and obligations arising under the contract" - held no unfair term REPRESENTATIVE PROCEEDING - orders made under s 33ZB of Federal Court of Australia Act 1976 (Cth) binding group members who have not opted out

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    REPRESENTATIVE PROCEEDINGS – representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) – open class – application for common fund order – applicable principles – whether appropriate to make common fund order – desirability for amount to be paid to a funder increases as the risk undertaken by the funder increases and that any percentage commission payable to a funder be struck by reference to net resolution sum

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    PRACTICE AND PROCEDURE - costs - where each party successful in relation to one issue - where both parties accepted that an issues-based approach to costs was appropriate

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    CONSUMER LAW - alleged contraventions of s 21 of the Australian Consumer Law - provision of online vocational educational courses covered by the VET FEE-HELP scheme - whether appellant engaged in unconscionable system of conduct or pattern of behaviour - unconscionability as a characterisation related to human conduct by reference to conscience - conscience as reflected in the statute - insufficient evidence to found conclusion of an unconscionable system or pattern of behaviour

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    CONSUMER LAW - alleged contraventions of ss 18 and 29 of the Australian Consumer Law - misleading or deceptive conduct in trade or commerce - false or misleading representations about goods or services - where respondent provided online vocational education services, engaging recruiters to market its services direct to consumers - whether recruiters made misleading or deceptive representations to specific consumers, including by silence - various representations that respondent's courses and laptops given as inducements to enrol were free, or that no liability was incurred until a consumer's income exceeded a threshold, or that respondent's courses were specifically for Aboriginals in contravention of ss 18 and 29 - attribution of recruiters' conduct to respondent CONSUMER LAW - alleged contraventions of ss 74, 76, 78 and 79 of the Australian Consumer Law - whether respondent, and respondent by its recruiters, contravened unsolicited consumer agreement provisions regarding specific consumers - disclosing purpose and identity - requirement to leave premises upon request - requirement to inform consumer of termination period - requirement to give documentation of agreement to consumer - contraventions found CONSUMER LAW - alleged contraventions of s 21 of the Australian Consumer Law - unconscionable conduct in trade or commerce in connection with supply of goods or services - whether respondent's marketing and enrolment system unconscionable - marketing and enrolment system unconscionable where insufficient training given to recruiters, consumers induced to enrol, unsolicited consumer agreements made without safeguards, minimal verification of consumers' literacy and numeracy, and targeted at disadvantaged consumers - whether recruiters acted unconscionably regarding specific consumers - recruiters acted unconscionably where they variously contravened ss 18 and 29 and the unsolicited consumer agreement provisions, manipulated or pressured consumers to enrol and assist in the enrolment of others within their communities, forged documents, enrolled consumers in multiple courses, and/or failed to assess consumers' suitability to enrol - attribution of recruiters' conduct to respondent

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    MIGRATION – appeal of refusal to grant a temporary protection visa – whether the primary Judge erred in finding that the Authority’s decision did not contain a jurisdictional error

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    CORPORATIONS - scheme of arrangement - first Court hearing - application to convene a members' meeting pursuant to s 411(1) of the Corporations Act 2001 (Cth) - application allowed.

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    CORPORATIONS - scheme of arrangement - second Court hearing - whether to approve a scheme under s 411(4)(b) of the Corporations Act 2001 (Cth) - application allowed.

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    MIGRATION - appeal from dismissal of judicial review application by Federal Circuit Court of Australia - application to rely on new grounds of appeal - whether Refugee Review Tribunal failed to consider claims - relevance of corroborative evidence - appeal dismissed

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    PRACTICE AND PROCEDURE - application for interlocutory injunction requiring the provision to the applicant of urgent medical treatment - duty of care allegedly owed by respondents to applicant brought to Nauru under the Migration Act 1958 (Cth) - principles relevant to the grant of an interlocutory injunction - whether serious question to be tried - where the balance of convenience lies - injunction granted to require the respondents to transfer applicant to a location in Australia where she can be provided with urgent medical treatment

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    MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Immigration Assessment Authority (Authority) affirmed the decision of a delegate not to grant the protection visa - where the appellant if required to relocate to another part of Afghanistan would be separated from his family for the reasonably foreseeable future - whether the Authority had erred in applying s 36(2B) of the Migration Act 1958 (Cth) - application dismissed.

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    COPYRIGHT - application for "site blocking" orders under s 115A of the Copyright Act 1968 (Cth) - online locations from which files used to facilitate operation of online streaming of pre-recorded and live television content previously broadcast on free-to-air channels in Hong Kong - where broadcasts per se not the subject of copyright - where most of content the subject of such broadcasts comprises pre-recorded feature films, television series and segments in which copyright subsists as cinematograph films - whether requirements of s 115A satisfied - whether orders should be made

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    EVIDENCE – whether s 304 of the Duties Act 1997 (NSW) is picked up by s 79 of the Judiciary Act 1903 (Cth) in respect of proceedings in the Federal Court where admissibility is governed by ss 55 and 56 of the Evidence Act 1995 (Cth)

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    TAXATION - appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and application under s 39B of Judiciary Act 1903 (Cth) - where amended income tax assessments issued to applicant under item 5 of table in s 170(1) Income Tax Assessment Act 1936 (Cth) - whether Tribunal required to form an opinion as to fraud or evasion - whether by applying Binetter v Commissioner of Taxation (2016) 249 FCR 534 Tribunal was exercising judicial power of the Commonwealth - whether Tribunal erred when concluding applicant failed to discharge her onus of proof -- whether Tribunal erred by failing to re-exercise Commissioner's discretion to remit penalties - no question of law raised as to weighing up evidence and making credit assessments - applications dismissed. CONSTITUTIONAL LAW - whether Taxation Administration Act 1953 (Cth) s 14ZZA, with AAT Act ss 25 and 43, operated, contrary to the Constitution, to confer the judicial power of the Commonwealth on the Tribunal - applications dismissed. PRACTICE AND PROCEDURE – application to amend notice of appeal under s 44 of the AAT Act and application under s 39B of the Judiciary Act 1903 (Cth) – amendments, if allowed, bound to fail – leave refused.

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    MIGRATION - application for Protection (Class XA) Visa - appeal from Federal Circuit Court of Australia - where appellant did not receive initial notification of visa refusal decision - whether there was a duty to inform the appellant that time was running out - whether the Act or the Regulations permit any discretion with respect to a would-be appellant being out of time - appeal dismissed

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