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Lastest Judgments from the Federal Court

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    CORPORATIONS - schemes for reconstruction involving compromises or arrangements - application for orders that companies convene meetings of members

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    PRACTICE AND PROCEDURE - interlocutory application for further and better particulars of defence - where parties agreed application should be determined on the papers

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    PRACTICE AND PROCEDURE - application for leave to appeal from judgment and orders of Federal Court of Australia dismissing summary judgment application - where parties agreed current application should be determined on the papers - whether primary judge erred by failing to address and uphold the State of Western Australia's case as to s 85 of the Mining Act 1978 (WA) - whether primary judge erred by failing to address and uphold the State of Western Australia's case as to s 24MD(6B) of the Native Title Act 1993 (Cth) - where primary judge considered all issues best left to a trial - no appellable error demonstrated - leave to appeal refused

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    TAXATION - international taxation - double taxation agreement between Australia and the Republic of India (the Indian agreement) - interpretation of double taxation agreements - interaction between domestic tax law and double taxation agreements - where company resident in India for tax purposes - whether payments to the company that are royalties for the purposes of the Indian Agreement but are not otherwise royalties under Australian tax law are deemed to be Australian source income by reason of Article 23 of the Indian Agreement and ss 4 and 5 of the International Tax Agreements Act 1953 (Cth) and therefore included in the company's assessable income for Australian tax purposes

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    PRACTICE AND PROCEDURE - winding up - stay pending appeal

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    SOCIAL SECURITY - request under s 68 of the Social Security (Administration) Act 1999 (Cth) for information - conclusion by Administrative Appeals Tribunal that response insufficient - whether conclusion reasonably found - consequent affirmation of decision to suspend pension - whether absence of finding of partner visa under the Migration Act 1958 (Cth) procedurally consistent with a person being a member of a couple for the purposes of the Social Security Act 1991 (Cth) Held: no error in decision of primary judge that conclusion of Tribunal was reasonably open - no inconsistency between absence of a partner visa and being a member of a couple for the purposes of Social Security Act 1991 (Cth)

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    MIGRATION - protection visa application - application for review of decision of the Tribunal - where the applicant had a criminal history of assault, including sexual assault, and driving under the influence of alcohol - where the applicant had committed a serious offence within the meaning of s 5 of the Migration Act 1958 (Cth) (Act) - where a delegate of the Minister refused the protection visa as the delegate was not satisfied that the applicant satisfied the criterion in s 36(1C) of the Act - where the Tribunal affirmed that decision - whether Tribunal failed to afford the applicant procedural fairness as a result of the delay between the hearing and the delivery of the decision - whether the Tribunal confused its decision-making in the applicant's case with another decision delivered on the same day - whether the Tribunal failed to give proper, genuine and realistic consideration to the evidence before it - whether the Tribunal proceeded without a correct understanding of the law

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    MIGRATION - protection visa application - appeal from decision of Federal Circuit Court dismissing an application for review of Tribunal decision - where leave required to rely on grounds of appeal not raised in notice of appeal and not made before the primary Judge

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    MIGRATION - appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority - where the Authority affirmed a decision to refuse the grant of a protection visa to the appellant - whether the Authority erred by relying on passages of entry interview containing interpretation errors - significance of errors in the Authority's reasons - held: errors not operative on the decision reached by the Authority - held: appeal dismissed

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    COMPENSATION - statutory appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - where the employee had a pre-existing shoulder injury - whether Tribunal erred in its interpretation of ss 5B and 14 of the Act - whether the Tribunal erred in its interpretation of s 7(7) of the Act

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - whether Tribunal gave 'clear particulars' of information required by s 359AA of Migration Act 1958 (Cth)

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    REPRESENTATIVE PROCEEDINGS - representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) - application for common fund order - whether appropriate to make common fund order - held: common fund order appropriate

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    BANKRUPTCY AND INSOLVENCY - uncontested application for replacement of liquidator and trustee of bankrupt estates

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Immigration Assessment Authority - whether Appellant should be granted leave to raise arguments not put to Court below - whether Authority considered reasonably foreseeable future when assessing risk of harm upon return

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    COSTS - applicant's application for costs - where applicant obtained leave to discontinue proceeding under R 26.12 of the Federal Court Rules 2011 (Cth) - where R 26.12 creates presumption that respondent to discontinued application is entitled to costs - where it was not unreasonable for applicant to commence proceeding - where respondent capitulated on the substantive question - costs order entered in favour of applicant

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    PRACTICE AND PROCEDURE - interlocutory application to expedite hearing of proceeding - Bill pending before Parliament - proposed validation of appointment of an area under s 5(5)(a) of the Migration Act 1958 (Cth) - application refused

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    MIGRATION - Application for extension of time - alleged failure to comply with ss 424A and 425 of Migration Act 1958 (Cth) - additional opportunity to file evidence and submissions - no error established - application dismissed

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    COSTS – application by respondents for award of indemnity costs following order for summary judgment with costs in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 – where respondents contend that applicant’s rejection of offer of settlement was so unreasonable as to warrant award of indemnity costs – where respondents succeeded on narrow ground pertaining to separate question but failed as to rest of interlocutory application – held: respondents awarded party/party costs for entire interlocutory application and substantive proceeding but denied indemnity costs

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    MIGRATION - application for judicial review - where applicant's transitional permanent (class BF) visa cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) - where delegate of the Minister for Home Affairs refused to revoke visa cancellation - where application for review in the Administrative Appeals Tribunal dismissed due to applicant failing to appear at the hearing - where Tribunal refused to reinstate application for review due to expiry of 84 day period contained in s 500(6L)(c) of the Migration Act - operation of s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) - where reinstatement order would be futile due to s 500(6L) - application dismissed

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  • 10/11/18--21:55: Tran v Singh [2018] FCA 1512
  • SOCIAL SECURITY - whether to grant extension of time to appeal from decision of Administrative Appeals Tribunal to affirm decision that applicant's newstart allowance was correctly cancelled - where applicant refused to enter Employment Pathway Plan required in accordance with Social Security Act 1999 (Cth) s 605(1), disqualifying himself from receipt of newstart allowance per s 603(1) - no error of law identified - application dismissed

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