MIGRATION - where a father and his two minor children (the applicants) were on board a vessel in distress approximately 55 nautical miles north-east of Christmas Island - where the HMAS Maryborough intercepted the vessel in distress and brought the applicants to Christmas Island where they were detained - where the father applied unsuccessfully for a protection visa - where the applicants applied to the Court for a declaration that each of the two minor children is a "non-citizen child" within the meaning of s 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) with the consequence that the Minister is their guardian under s 6(1) of the IGOC Act and has the same rights, powers, duties, obligations and liabilities as a natural guardian of the children
STATUTORY INTERPRETATION - whether each of the minor children applicants is a "non-citizen" child under s 4AAA of the IGOC Act
DKB18 v Minister for Home Affairs [2018] FCA 1465
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CDB17 v Minister for Immigration and Border Protection [2018] FCA 1344
MIGRATION - application for extension of time to file notice of appeal from decision of Federal Circuit Court dismissing an application for judicial review - where applicant sought an adjournment of the hearing - whether proposed notice of appeal raised any grounds of review that had sufficient prospects of success to justify extension of time
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Ye v Zeng (No 7) [2018] FCA 1478
ARBITRATION - orders for the appointment of a receiver because obligations of payment were not fulfilled by award debtor subsequently set aside by agreement between parties - application to restore orders
CONSUMER LAW - whether respondents engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law - whether oral representations were made as alleged - whether the making of a representation as to financial capacity was conduct in trade and commerce - whether contravening conduct caused entry into agreements - contravening conduct established and agreements set aside
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Australian Competition and Consumer Commission v Oakmoore Pty Ltd [2018] FCA 1472
COMPETITION - collusive arrangement - exclusive dealing - admitted contraventions of ss 47 and 76 of the Competition and Consumer Act 2010 (Cth) - enforcement and remedies - application for agreed declarations, pecuniary penalties and non-punitive orders - whether proposed declarations, penalties and orders appropriate - consideration of principles - proposed declarations and orders made and penalties imposed.
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Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
MIGRATION - where the primary judge quashed the decision of the Immigration Assessment Authority to refuse the first Respondent's protection visa on the basis that the Immigration Assessment Authority failed to identify particular errors in the delegate's reasoning - whether the Immigration Assessment Authority's obligations to provide reasons pursuant to s 473EA(1)(b) of the Migration Act 1958 (Cth) and consider the review material pursuant to s 473DB(1) of the Migration Act requires the Immigration Assessment Authority to engage with the delegate's reasoning and in particular identify incorrect findings - appeal allowed
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Sellars v Matthews (Trustee), in the matter of Sellars [2018] FCA 1475
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Australian Maritime Safety Authority v Globex Shipping S.A. [2018] FCA 1477
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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Waris v Minister for Immigration and Border Protection [2018] FCA 1481
MIGRATION - application for leave to appeal - application for adjournment where six months notice of trial date was given - grounds of appeal do not engage with jurisdictional error. Held - adjournment not allowed. Application dismissed.
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Bhatia v Malaysian Airline System Berhad [2018] FCA 1471
PRACTICE AND PROCEDURE - applicant asserting right to damages against an airline carrier under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) - statutory cause of action - Commonwealth enactment giving international convention force of law - convention providing that right to damages extinguished if action not brought within two years - applicant started a proceeding within two years joining wrong entity as respondent - application to amend name of respondent after passage of two years - whether right to damages against proposed respondent extinguished - proposed order would have effect of substituting a person as a party in the proceeding - whether Court rule provides for relation back of time in which proceeding starts against substituting party - amendment under r 8.21 of the Federal Court Rules 2011 (Cth) cannot operate to revive extinguished right to damages - legislation providing for limitation of actions defence inapplicable - amendment application dismissed
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BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463
MIGRATION - appeal from Federal Circuit Court decision dismissing application for judicial review of adverse International Treaties Obligations Assessment decision - whether primary judge erred in finding no jurisdictional error - failure by assessor to apply correct legal standard in determining whether the appellant had a well-founded fear of persecution - failure by assessor to consider the whole of the appellant's claims and evidence - appeal allowed
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Abdel-Hady v Minister for Immigration and Border Protection [2018] FCAFC 164
MIGRATION cancellation of visa on character grounds whether visa holder denied procedural fairness whether decision to cancel visa affected by legal unreasonableness.
APPEAL AND NEW TRIAL oral submissions raising arguments not advanced on notice of appeal arguments not advanced before primary judge arguments unmeritorious
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Dincel Constructions Systems Pty Ltd v AFS Systems Pty Ltd [2018] FCAFC 157
APPEAL - nature of appellate review - appeal in the nature of a "real review" - degree of deference to be accorded to the primary judge's findings - requisite degree of error - whether there is error on the facts and what inferences are to be drawn - where preferences made as to expert witnesses - reviewability of the primary judge's construction of the patent or inferences drawn from uncontested evidence - consideration of Robinson Helicopter Company Inc v McDermott.
PATENTS - whether the primary judge erred in finding that the respondent's building element does not infringe the relevant patent claims - patent construction - appellate review of patent construction.
Held: appeals dismissed
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BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483
MIGRATION - application for extension of time within which to seek leave to appeal - application for leave to appeal from interlocutory decision - application dismissed
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CRP15 v Minister for Immigration and Border Protection [2018] FCA 1484
MIGRATION - refusal of a protection visa application - whether the Tribunal acted illogically or irrationally - appeal dismissed
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Australian Building and Construction Commissioner v Gava [2018] FCA 1480
INDUSTRIAL LAW - contraventions of s 503 of the Fair Work Act 2009 (Cth) (the FW Act) - First Respondent causing entry notice to be sent with the intention of giving the impression that he was a permit holder authorised to send an entry notice and authorised to enter the site - First Respondent's subsequent entry to site with the intention of giving the impression that he was a permit holder authorised to enter the site - whether two acts were part of the same action and constituted a single contravention - two actions held to be separate and distinct contraventions - appropriate pecuniary penalties for contraventions by union and union official.
INDUSTRIAL LAW - personal payment order under s 546 of the FW Act - whether appropriate to make a personal payment order - union official is no longer employed by the union and conduct isolated - personal payment order not appropriate in the circumstances.
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A1 for Maintenance Pty Ltd v Lehal Pty Ltd [2018] FCA 1476
PRACTICE AND PROCEDURE - application for security for costs under s 1335 of the Corporations Act 2001 (Cth) - whether there is reason to believe the applicant will be unable to pay respondents' costs if it is unsuccessful in its claim - whether the Court should exercise its discretion to make an order for security for costs - whether adequate evidence to support an assessment of the quantum of security sought - order for security for costs made
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Kuterba v Sirtex Medical Limited (No 2) [2018] FCA 1489
PRACTICE AND PROCEDURE - interlocutory application for order requiring respondent to provide three business days' notice before disposing of assets below a certain threshold - whether in substance a freezing order - whether applicants should be required to give undertaking as to damages
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SZWAQ v Minister for Home Affairs [2018] FCA 1482
MIGRATION appeal from decision of the Federal Circuit Court; whether Tribunal failed to properly consider the appellants claim
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DUV17 v Minister for Immigration and Border Protection [2018] FCA 1492
MIGRATION - appeal from decision of the Federal Circuit Court; whether the Authority failed to exercise or failed to consider to exercise its discretion to obtain new information; whether the Authority failed to assess certain claims; whether the Authority failed to consider or misapplied the test in considering the appellant's claim for complementary protection
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Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd (No 2) [2018] FCA 1486
PRACTICE AND PROCEDURE - application for self-executing orders or dismissal of proceedings by defendants - where plaintiff has not complied with orders requiring it pay each defendant security for costs - application for dismissal for non-compliance - no evidence as to reasons for non-compliance - where ASIC proceedings brought concurrently - effect of ASIC proceedings - self-executing orders made for dismissal of proceedings if security not paid
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