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Lastest Judgments from the Federal Court

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    EXTRADITION - urgent application seeking, relevantly, to restrain the respondent from taking further action in relation to the extradition of the applicant - application resisted on jurisdictional and other grounds - where the Court lacks jurisdiction pursuant to s 39B(1C) of the Judiciary Act 1903 (Cth) - where, even were there no want of jurisdiction, the applicant failed to establish a prima facie case. Held: application dismissed

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    TAXATION - appeal from a decision of the Administrative Appeals Tribunal - were taxpayer incurred expenditure to acquire gaming machine entitlements under Gambling Regulation Act 2003 (Vic) - whether Tribunal erred in finding that expenditure was on revenue account and deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) - whether expenditure was "outgoing of capital, or of a capital nature" - whether expenditure was incurred to provide a necessary component of the profit-making structure of the taxpayer's business. TAXATION - whether expenditure on gaming machine entitlements was "capital expenditure" deductible over 5 years in accordance with s 40-880(2) of the Income Tax Assessment Act 1997 (Cth) - whether expenditure was "incurred to preserve (but not enhance) the value of goodwill" within the meaning of s 40-880(6)

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    PRACTICE AND PROCEDURE - where application for an extension of time within which to seek judicial review of the Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) transferred by the Federal Circuit Court to the Federal Court - where Federal Court lacks jurisdiction to grant extension of time with respect to the proceedings instituted in the Federal Circuit Court - where application for extension of time remitted back to the Federal Circuit Court and granted by that Court. MIGRATION - where application for judicial review of the Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory cancellation of the applicant's visa under s 501(3A) -whether the Minister failed to consider the applicant's claim to fear harm in circumstances where applicant had applied for a protection visa - BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 distinguished on the basis that the Minister considered the applicant's fear of harm if returned in deciding whether to revoke the cancellation decision - application dismissed

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    TRADE MARKS - appeal from decision of delegate of Registrar of Trade Marks - whether respondent's trade marks should be removed from Trade Marks Register for non-use - consideration of scope of class of goods marks registered in respect of - whether marks used by respondent where marks used by respondent's parent company without licence until after relevant period - no use where no "actual control" exercisable by respondent over parent company's use - whether to nevertheless exercise discretion not to remove marks from Register - appropriate to exercise discretion, considering present and future intended use of marks and potential for confusion if marks deregistered - appeal dismissed TRADE MARKS - appeal from decision of different delegate of Registrar of Trade Marks - whether to permit registration of respondent's trade mark - where opposed mark similar to appellant's mark, with later priority date and sought to be registered in respect of similar goods - whether other circumstances nevertheless make registration proper - registration improper where mark not used by respondent at priority date - appeal allowed

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    REPRESENTATIVE PROCEEDINGS – settlement approval pursuant to s 33V of Federal Court of Australia Act 1976 (Cth) – observations on the need to ensure proportionality in class action litigation – confidentiality orders and the importance of open justice considerations – discussion of the need for caution in a representative applicant dealing with the claims of group members and the limited nature of the statutory agency of the representative applicant – settlement approved

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    BANKRUPTCY AND INSOLVENCY - Plaintiffs seeking order pursuant to s 477(2A) of the Corporations Act 2001 (Cth) to approve entry into an agreement for the compromise of judgment debts. Held: approval under s 477(2A) of the Corporations Act given - creditors have approved the compromise under s 477(2B) - creditors communicated willingness to give approval pursuant to s 477(2A) - number of creditors is limited - the approval will result in the payment of substantial sums to the companies in liquidation - plaintiffs have obtained legal advice.

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    PRACTICE AND PROCEDURE - where application for an extension of time within which to seek judicial review of the Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) transferred by the Federal Circuit Court to the Federal Court - where Federal Court lacks jurisdiction to grant extension of time with respect to the proceedings instituted in the Federal Circuit Court - where application for extension of time remitted back to the Federal Circuit Court and granted by that Court. MIGRATION - where application for judicial review of the Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory cancellation of the applicant's visa under s 501(3A) -whether the Minister failed to consider the applicant's claim to fear harm in circumstances where applicant had applied for a protection visa - BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 distinguished on the basis that the Minister considered the applicant's fear of harm if returned in deciding whether to revoke the cancellation decision - application dismissed

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    PRIMARY INDUSTRY – consideration of the regulatory arrangements established under the National Measurement Act 1960 (Cth) concerning the approval of a pattern (design) for a milk flowmetering system for the accurate measurement of the transfer of milk from the refrigerated vat on a dairy farm to a transport tanker and from the tanker to the storage vats of a milk processor – consideration of the conditions of approval of the pattern – consideration of the provisions of the Act relating to examination and approval of patterns, verification of compliance of instruments with the relevant requirements, certification and use – consideration of whether the affixing of an approval number to particular measuring instruments without the approval of the applicant engages misleading or deceptive conduct or conduct likely to mislead or deceive and whether such conduct amounts to passing off. STATUTES – consideration of a wide range of provisions of the National Measurement Act 1960 (Cth) and the Regulations made under that Act

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    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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    CORPORATIONS - application to set aside statutory demand - where the defendant loaned money to the plaintiff pursuant to an oral loan agreement - whether there is a genuine dispute as to the existence or amount of a debt - whether there is a genuine dispute about the alleged term of the oral loan agreement as to whether the loan is repayable on call - Held: application dismissed, with costs EVIDENCE - admissibility of evidence in the context of an application to set aside a statutory demand on the basis that there is a genuine dispute about the existence of a debt - whether the plaintiff adduced sufficient admissible evidence to establish that it had a plausible contention which required investigation as to the alleged term of the oral loan agreement concerning repayment

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    MIGRATION – refusal of spousal visa ADMINISTRATIVE LAW – an opportunity to be heard – not an ongoing opportunity to continue supplementing evidence after decision – circumstances in which tribunal should allow party to re-open – circumstances in which adverse findings as to credit may be challenged on an application for judicial review

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    PRACTICE AND PROCEDURE - application for deemed service under r 10.23 of the Federal Court Rules 2011 (Cth) - application for substituted service under r 10.24 - failed attempt to effect personal service - consideration of relevant principles as to whether personal service is 'not practicable' - application allowed

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    MIGRATION - review of the decision of the Assistant Minister for Home Affairs - visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) - decision not to revoke visa cancellation - whether the Assistant Minister was required to consider whether non-refoulement obligations were "another reason" to revoke the cancellation of a visa under s 501CA(4)(b)(ii) of the Migration Act - whether the Assistant Minister mischaracterised the applicant's claim as a claim based on non-refoulement obligations - whether the Assistant Minister failed to consider whether harms which were not subject to non-refoulement obligations were "another reason" to revoke the cancellation of the visa - whether the Assistant Minister failed to consider relevant, material and significant evidence - whether the Assistant Minister's decision was legally unreasonable - application dismissed

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    PRACTICE AND PROCEDURE - application for extension of time and leave to appeal - extension of time refused - leave refused PRACTICE AND PROCEDURE - entitlement of litigant to pursue appeal - need for appellable error and not mere dissatisfaction with primary decision

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    PRACTICE AND PROCEDURE - costs - application to transfer - costs in the cause

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    NATIVE TITLE - determination of native title by consent pursuant to s 87 of Native Title Act 1993 (Cth) - appropriate to make orders

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    COSTS - applications against a non-party arising out of subpoena issued to non-party, whether a subpoena could be issued against a foreign corporation, and for a Sabre order - which party to bear costs

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    MIGRATION - application for review of decision not to revoke mandatory cancellation of Class BC Subclass 100 Spouse Visa - consideration of evidence - decision not unreasonable or arbitrary - procedural fairness - relevance of previous decision - weight given to primary and other considerations under Minister's Direction No. 65 - no jurisdictional error - application dismissed

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    PRACTICE AND PROCEDURE - application for summary dismissal as abuse of process - whether proceedings would involve unfairness and oppression - whether resources of Court and respondent which would be used disproportionate to interests at stake - application dismissed

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    COSTS - where indemnity costs sought - where leave to appeal granted but appeal dismissed - whether rejection of offers unreasonable

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