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Lastest Judgments from the Federal Court

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    BANKRUPCY AND INSOLVENCY - property available to meet creditors' claims - trustee had exercised right of exoneration to discharge taxation liability - payment void under s 122 of the Bankruptcy Act - money received by Bankruptcy Trustees subject to trust obligations

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    CORPORATIONS - application by a liquidator to wind up a company in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth) - company previously wound up voluntarily pursuant to s 491(1) of the Corporations Act - winding up in insolvency necessary for liquidator to bring an action under s 588FJ of the Corporations Act - application not opposed - whether there was utility in ordering the winding up - application granted

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    PRACTICE AND PROCEDURE - objection to competency of appeal - where proceeding was discontinued - where a costs order was consequently made - whether the costs order was final or interlocutory in nature - whether leave to appeal is required - consideration of whether appeal is competent

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    CORPORATIONS - application to convene a meeting of shareholders pursuant to s 411(1) of the Corporations Act 2001 (Cth) - scheme designed to effect a takeover of the target company by a consortium - where scrip consideration is shares in a proprietary company which is the holding company of the bidder - where a person who accepts scrip consideration may also subscribe for further shares in the same class - where money subscribed is used for payment of cash consideration alternative - whether capital raising is part of the "arrangement" for the purposes of s 411 Corporations Act - whether the offer of shares for subscription is exempted from disclosure under Chapter 6D of the Corporations Act by reason of s 708(17) or breaches s 113(3) - whether the use of a custodian to ensure that the company remains a proprietary company is fair and consistent with public policy - whether shareholders are "absolutely entitled" to any shares held by a custodian for the purpose of capital gains tax roller relief - application granted

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    COSTS - where application for extension of time and leave to appeal withdrawn pursuant to R 35.31 of the Federal Court Rules 2011 (Cth) - interlocutory application of first respondent for costs - operation of R 35.31(4) and s 85A of the Native Title Act 1993 (Cth) - whether the withdrawal of the leave application three days before the hearing constituted "unreasonable conduct" - lump sum costs order entered

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    MIGRATION - appeal from Federal Circuit Court of Australia - refusal of application for protection visa - fast track review process under Pt 7AA of the Migration Act 1958 (Cth) - where the Secretary of the Department provided to the Immigration Assessment Authority documents that had not been before the Minister when the Minister made the decision under s 65 of the Act - whether the documents were "new information" - where the Authority failed to consider whether there were exceptional circumstances to justify considering the new information as required by s 473DD - whether the Authority's decision was affected by jurisdictional error - appeal allowed

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    MIGRATION - application for extension of time to apply for judicial review of Minister's decision to exercise discretion and cancel applicant's visa - visa cancelled on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) - whether Minister fell into jurisdictional error - whether applicant's criminal record was obtained unlawfully or improperly - whether Minister's decision therefore made without jurisdiction - whether Minister's decision to refuse to revoke his cancellation decision was irrational and unreasonable - whether Minister failed to take into account a relevant consideration - whether this failure rendered Minister's decision illogical, irrational and unreasonable - where Minister identified sentence of imprisonment as relevant consideration - where Minister misconstrued or misunderstood wholly suspended nature of sentence - where Minister therefore failed to consider a relevant consideration - where Minister's decision lacked logical or evident basis - application granted and Minister's cancellation decision quashed

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    DAMAGES - where Full Court held first and second respondents liable for tort of misfeasance in public office - where Full Court remitted matter for assessment of damages - where applicant did not participate in damages hearing - general damages awarded in respect of reputational damage - aggravated damages awarded as conduct specifically designed to cause reputational harm - exemplary damages awarded in reference to Full Court's finding of "targeted malice"

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    INDUSTRIAL LAW - where employee organisation contravened s 417 Fair Work Act 2009 (Cth) by organising meeting of employees - where vote taken at meeting for 24-hour strike/stoppage - whether employee organisation also organised industrial action in the form of strike/stoppage - whether employee organisation's contravention of s 417 extended to organising strike/stoppage - where employer did not discharge onus of proving that employee organisation organised strike/stoppage INDUSTRIAL LAW - where employees contravened s 417 Fair Work Act 2009 (Cth) - accessorial liability of employee organisation for employees' contravention - whether employee organisation was knowingly concerned in, and therefore involved in, employees' contravention of s 417, pursuant to s 550 Fair Work Act 2009 (Cth) - where employer did not discharge onus of proving that employee organisation was liable for organisation of strike/stoppage INDUSTRIAL LAW - whether employee organisation contravened s 475 Fair Work Act 2009 (Cth) - whether employee organisation asked employer to make payments to employees in contravention of s 474 Fair Work Act 2009 (Cth) - where terms of legislation clear - motive for making request irrelevant

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    NEGLIGENCE - application for interlocutory injunction requiring the transfer of the applicant to Australia to receive urgent medical treatment - duty of care owed by respondents to an applicant brought to Nauru under the Migration Act 1958 (Cth) PRACTICE AND PROCEDURE - principles relevant to grant of interlocutory injunction - where the balance of convenience lies - timing of transfer - possibility of difficulties in securing transfer - injunction granted to require the respondents to transfer the applicant to Australia to receive urgent medical treatment

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    ADMINISTRATIVE LAW - judicial review of decisions refusing to pay vocational education provider under Higher Education Support Act 2003 (Cth) - where respondents seek dismissal of application for judicial review as incompetent or, alternatively, summary judgment - whether decisions were made under an enactment - whether applicant's legal rights altered or otherwise affected - whether relief available under s 39B of the Judiciary Act 1903 (Cth) - originating application dismissed

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    PRACTICE AND PROCEDURE - interlocutory application seeking leave for the first defendant to represent the second defendant and requesting vacation of the scheduled hearing and an extension to the existing timetable - leave granted for the first defendant to represent the second defendant - application otherwise dismissed

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    MIGRATION - cancellation of visa on character grounds - Tribunal affirming decision not to revoke cancellation - whether Tribunal erred in failing to assess the prospect that the applicant would face indefinite detention if visa cancellation not revoked - Tribunal assessed prospect of indefinite detention - Tribunal found applicant a person to whom Australia owed non-refoulement obligations - prospect of indefinite detention assessed as not inevitable - whether task of Tribunal required a finding to be made as to definite detention on the balance of probabilities - whether Tribunal erroneously deferred a part of its task to the decision-maker responsible for determining the applicant's pending application for a protection visa - Tribunal placing little weight on impediments applicant may face if returned to his home country - Tribunal proceeding on assumption Australia would comply with its non-refoulement obligations - no jurisdictional error affecting weight - application dismissed

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    CORPORATIONS - application by a liquidator for a warrant to search for and seize company books and records pursuant to s 530C of the Corporations Act 2001 (Cth) - whether liquidator had taken sufficient steps to justify the issue of a warrant - whether the books and records of the company were within the "possession" of the Defendant - application granted

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    PRACTICE AND PROCEDURE - application for leave to amend statement of claim - consideration of relevant delay in bringing application - amendments also challenged on basis that claims untenable - case management principles - leave granted

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    PRACTICE AND PROCEDURE - representative proceeding - interlocutory application by respondent for order under s 33K of the Federal Court of Australia Act 1976 (Cth) that amendments made to description of group take effect from date of amendment - where description of group appeared in statement of claim and not originating application - whether applicant representing one of two sub-groups could represent members of both sub-groups - source of power to make order - scope of s 33K - effect of amendments to group description - where amended statement of claim also named member of second sub-group representative applicant of that sub-group - whether claims made in statement of claim on behalf of both sub-groups were in respect of, or arose out of, the same, similar or related circumstances under s 33C(1)(b) - whether claims gave rise to a substantial common issue of law or fact under s 33C(1)(c) of the Act - need for certainty in definition of group members - whether order sought in interlocutory application should be granted

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    EDUCATION - penalties - where multiple contraventions of ss 117(1) and 121 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) by first respondent and where second respondent involved in those contraventions - where first respondent contravened ss 117 and 121 of the NVR Act by providing, or offering to provide, Vocational Education and Training (VET) courses or parts of VET courses, and purporting to issue VET statements of attainment, at a time when it had ceased to be a registered training organisation as a result of its non-compliance with relevant standards and requirements - where respondents admitted contraventions - where joint statement of agreed facts - where agreed submission on appropriate range of penalties - where co-operation on the part of the respondents

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    INTELLECTUAL PROPERTY - claim of infringement by the Second Respondent of patent for air conditioning unit - whether alleged infringing unit contains claims in patent - patent contains claim for a centrifugal fan - the alleged infringing unit contains a fan producing the effect of a centrifugal fan by use of surrounding apparatus - whether skilled addressee would have understood patent as including the requirement that the fan itself be centrifugal. HELD: a skilled addressee would understand the patent as requiring the fan to be centrifugal - no infringement by the Second Respondent INTELLECTUAL PROPERTY - claim that First Respondent had authorised the infringement or is a joint tortfeasor with the Second Respondent - whether (in the event infringement was established) the First Respondent had aided or joined in the alleged infringing conduct - First Respondent's trademarks, name and address used on the cartons containing products - First Respondent provided some services in relation to products which included the alleged infringing units - First Respondent a wholly owned subsidiary of the company which manufactures the alleged infringing units. HELD: If the claim for infringement had been established, the First Respondent would be a joint tortfeasor with the Second Respondent in relation to the infringement. INTELLECTUAL PROPERTY - cross-claim for revocation of patent on the basis of invalidity - claim that the patent does not describe the best method known to the applicant in performing the invention - relevant time at which the knowledge of the applicant in relation to the best method is evaluated - specification did not disclose the best method - claim that the patent applicant was in control of access to the information concerning the best method. Held: patent applicant did not know the best method of performing the invention at the time of filing the application. INTELLECTUAL PROPERTY - cross-claim for revocation of patent on the basis of invalidity - claim that the patent is not novel - whether use of an air conditioning system in a bus in China disclosed the essential integers of the patent - no disclosure of essential integers of patent - ground of invalidity fails.

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    PRACTICE AND PROCEDURE - application for interlocutory injunction pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act) and s 23 of the Federal Court of Australia Act 1976 (Cth) - alleged adverse action for a prohibited reason or reasons under the FW Act - prima facie case - balance of convenience INDUSTRIAL LAW - where a mine worker had previously been reinstated by her employer after successfully unfair dismissal - where the mine worker was informed that she was no longer required at the mine - where on the night prior to being informed that she was no longer needed, the applicant purported to exercise workplace rights - where no reasons were given for the demobilisation of the mine worker - whether the mine worker exercised workplace rights as defined in the Fair Work Act 2009 (Cth) (FW Act) - whether the decision that the mine worker was no longer needed was made prior to the purported exercise of workplace rights - whether adverse action was taken for a prohibited reason or reasons in contravention of s 340 of the FW Act - whether the application is statute barred as a result of s 725 of the FW Act

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    INSURANCE - transfer of insurance business - application to dispense with the requirements of s 17C(2) of the Insurance Act 1973 (Cth)

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