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Lastest Judgments from the Federal Court

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    PRACTICE AND PROCEDURE - application under r 16.21 of the Federal Court Rules 2011 to strike out the statement of claim on a cross-claim - pleading not struck out - order that cross-claimants provide particulars of certain allegations.

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    CORPORATIONS - proceeding by plaintiff director alleging oppression under s 233 of the Corporations Act 2001 (Cth) by reason of an alleged failure to repay salary "arrears" - finding that there was no oppression - application for declaration dismissed CONTRACTS - whether terms of employment contract between plaintiff director and the corporate defendant varied by oral agreement - whether consideration given for variations - finding that consideration given - finding employment contract as varied not breached CONTRACTS - where shareholders deed prescribes procedure upon resignation of director - where value of director's shares to be determined by independent expert - where decision of the independent expert is binding absent "manifest error" - finding of two manifest errors, one involving an erroneous methodology, the other a failure to consider "future prospects ... of the business of the company" - order that valuation dispute be remitted to independent expert for re-determination

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    COSTS – discussion of costs orders against representative applicant in a class action with a public interest dimension. REPRESENTATIVE PROCEEDINGS – discussion of importance of willingness for persons with claims to act in a representative capacity

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    CORPORATIONS - application by responsible entity of registered managed investment scheme - whether resolution appointing new responsible entity valid - where passing of two resolutions expressed as 'subject to and conditional upon' passing of another resolution - consideration of principles to be applied in construing statutory licence - where new responsible entity did not hold a valid Australian financial services licence to operate scheme at time of resolution to appoint the entity - consideration of provisions relating to Australian financial services licences under Corporations Act 2001 (Cth) - whether new responsible entity must hold Australian financial services licence to operate scheme at time of resolution to appoint the entity - consideration of provisions concerning removal of responsible entity - resolutions held to be invalid CORPORATIONS - whether chair of members' meeting validly appointed - where responsible entity was excluded from vote on appointment of chair - whether chair acting as interim chair presided over own election - whether any substantive consequence of presiding over the declaration of the result of resolution to elect chair - chair not validly appointed - members' meeting invalid

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    PRACTICE AND PROCEDURE - application for interlocutory injunction to remove applicants from Nauru in order to receive appropriate medical and mental health treatment - where applicants are living on Nauru - where medical evidence indicated significant and deteriorating physical and mental health issues - whether serious question to be tried that respondents owe applicants a duty of care to provide them with a level of medical care appropriate to meet their needs - whether balance of convenience favours granting injunction

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    ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) - whether Tribunal failed to take account of a mandatory relevant consideration - whether grant of ex-citizen visa under Migration Act 1958 (Cth) s 35(3) was mandatory relevant consideration - where Tribunal set aside decision of Minister to cancel citizenship - where Tribunal accepted that Respondent would be repatriated if citizenship cancelled ADMINISTRATIVE LAW - application for judicial review of Tribunal under s 39B of Judiciary Act 1903 (Cth) - whether writs should be issued - where appeal from Tribunal concurrently pursued

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    CONTEMPT - where third defendant previously found to have committed a contempt in failing to comply with orders of the Court - where third defendant is bankrupt - consideration of appropriate penalty and costs - where options in terms of penalty appear to be a custodial sentence or a pecuniary penalty - where a pecuniary penalty for contempt falls within s 82(3) of the Bankruptcy Act 1966 (Cth) and is not provable in bankruptcy - where third defendant has no present capacity to pay a pecuniary penalty and a failure to pay is unlikely to constitute a further contempt - whether circumstances are sufficient to point away from a pecuniary penalty and towards a custodial sentence - whether there are good reasons not to impose a custodial sentence or a custodial sentence which is suspended - where third defendant may at some stage in the future be able to pay a pecuniary penalty COSTS - whether costs ought to be awarded to the plaintiffs on an indemnity basis - where order for indemnity costs is often made in contempt proceedings - where nothing has been put to suggest that an order for indemnity costs is not appropriate - where order for indemnity costs will not be affected by the existing bankruptcy

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    MIGRATION -where Immigration Assessment Authority affirmed delegate's decision not to grant the applicant a protection visa - where application for judicial review of Federal Circuit Court (FCC) decision refusing an extension of time under subs 477(2) of the Migration Act 1958 (Cth) for judicial review of the Authority's decision -observations as to the distinction between judicial review of a decision of an inferior court and judicial review of an administrative decision - where alleged non-jurisdictional errors on the face of the record rely upon FCC reasons - where FCC reasons not part of the record - where unnecessary to decide if FCC's wrongful reliance upon Spencer v Commonwealth (2010) 241 CLR 118 concerning summary dismissal was a jurisdictional error - where no merit in the FCC grounds of review of the Authority's decision in any event - where no error in failing to consider alleged claims of the applicant's wife and daughters who were not applicants and were in Pakistan - where applicant's grounds wrongly treat the application for judicial review of the FCC's decision as if it were an appeal - application dismissed PRACTICE AND PROCEDURE - where applicant sought to amend the further amended originating application to raise a new ground not argued before the primary judge - where proposed ground fails to identify any jurisdictional error by the primary judge - application refused

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    PRACTICE AND PROCEDURE - remittal to Commissioner of Taxation - evidence to be considered on remittal - costs - where 28 affidavits filed by the applicant were not read at trial

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    INDUSTRIAL LAW - assessment of penalties pursuant to s 546 of the Fair Work Act 2009 (Cth) - where respondents found to have contravened s 417(1)(a) of the Fair Work Act 2009 (Cth)

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    PRACTICE AND PROCEDURE - application for order of deemed service under Federal Court Rules 2011 (Cth) r 10.48 - whether not practicable to serve documents - where request for service previously made under the Hague Convention

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    CORPORATIONS - application for liquidators to be appointed as administrators of company - application granted

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    CONSUMER LAW - misleading or deceptive conduct -representations made as to ocean going capability of motor vessel inducing purchase - vessel not capable of ocean going use - representations were misleading or deceptive and the makers had no reasonable basis for making them CONSUMER LAW - misleading or deceptive conduct - loss and damage - vessel purchased in reliance on misrepresentations as to ocean going capacity was worth the price paid - vessel depreciated over time with use - appropriate measure of damages - rule in Potts v Miller or Astonland measure CONSUMER LAW - sale of goods - fitness for purpose - defects generating risk in the use of a vessel - not fit for purpose DAMAGES - misrepresentation inducing acquisition of motor vessel - vessel was readily saleable - no evidence that vessel was worth less than the price paid - application of the Astonland measure would compensate for "loss" arising from extrinsic, supervening or independent causes which were unrelated to the consequences of the misrepresentation - loss not established

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    MIGRATION - appeal from the Federal Circuit Court - where the primary judge dismissed the application for judicial review of the decision of the Immigration Assessment Authority affirming a decision of the delegate not to grant a Safe Haven Enterprise visa - review by the IAA under Pt 7AA of the Migration Act 1958 (Cth) - consideration of what constitutes "new information" as defined in s 473DC(1) - whether an Issues Paper was "before the Minister" - appropriate construction of "before the Minister" - whether the alleged failure by the decision-maker was of the requisite materiality Held: appeal dismissed

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    EVIDENCE - whether requirements met for admissibility of survey evidence - whether requirements in s 79 of Evidence Act 1995 (Cth) met to admit evidence as opinion based on specialised knowledge - where applicants filed late affidavit evidence to overcome admissibility objections - where applicants require dispensation with rr 29.02 and 29.08 of Federal Court Rules 2011 (Cth) to rely upon affidavit evidence - where respondent applies for rulings to exclude evidence on basis of unfair prejudice pursuant to s 135(a) of Evidence Act 1995 (Cth) - held: unfair prejudice pursuant to s 135(a) not made out and evidence deemed relevant - held: evidence admitted over objections

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    CONTEMPT OF COURT - civil contempt - penalties - where three of the defendants admitted liability for contempt - where the Court made declarations of contempt substantially in the terms proposed by the parties - applicable principles regarding penalties

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    PRACTICE AND PROCEDURE - application for preliminary discovery - r 7.23 of the Federal Court Rules 2011 (Cth)

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    CORPORATIONS - scheme of arrangement - second court hearing - application for approval - approval of alterations to scheme

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