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Lastest Judgments from the Federal Court

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

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    COSTS - application for a lump sum costs order - whether it is appropriate to make a lump sum costs order - where respondents did not appear in respect of the application - where proceedings have already been long and protracted - where taxation of costs is likely to be unopposed due to liquidation of three of the respondents, the bankruptcy of a fourth and the non-appearance of a fifth - where applicants should not be put to inconvenience and expense of a lengthy taxation, particularly where prospects of recovery must be doubtful - where, even if there were opposition, it is likely to be long and protracted and that is to be avoided in proceedings which have already been long and protracted

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    COSTS -whether costs order in favour of successful respondents should be reduced - whether patentee liable for costs of abandoned patent in suit - whether indemnity costs should be ordered pursuant to rule 25.14(1) of the Federal Court Rules 2011 (Cth)

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    BANKRUPTCY AND INSOLVENCY - application for judicial advice as to conduct of liquidation - whether debts owed by company - whether rule in Cherry v Boultbee [1839] Eng R 1099; (1839) 41 ER 171 applicable to distribution - costs

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    PRIVILEGE - whether respondent waived legal professional privilege over redacted portions of documents served upon applicant - held: applicant has not established wavier of legal professional privilege - interlocutory application dismissed with costs

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    MIGRATION - application for review of decision by Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's Absorbed Person visa - whether Minister's decision affected by jurisdictional error

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    MIGRATION - refusal of protection visa application - whether the decision of a differently constituted Tribunal could be used to show that the Tribunal's decision was unreasonable - appeal dismissed

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    ADMINISTRATIVE LAW- application for review of decisions made by Registrars of the Federal Court of Australia - where Registrars refused to accept documents for filing under r 2.26 of the Federal Court Rules 2011 (Cth) - where documents included application to set aside appeal decision - where orders entered - whether Registrars' conduct induced or affected by fraud - whether all letters from Registrars comprised decisions

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    MIGRATION - mandatory cancellation of applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) - decision by Minister under s 501CA of the Act not to revoke the cancellation decision - whether Minister failed to respond to a clearly articulated argument - whether the Minister failed to give proper, genuine or realistic consideration to an issue - whether the Minister denied the applicant procedural fairness - application allowed

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    BANKRUPTCY AND INSOLVENCY - application for review of a decision of a Registrar - application to set aside or vary orders for production - application allowed in part

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    ADMIRALTY - forfeiture of vessel entering Australian migration zone - applicant's vessel entered Australia's migration zone carrying persons not having evidence of holding a relevant Australian visa - automatic forfeiture of vessel under Migration Act 1958 (Cth) - whether vessel was used in a contravention of a provision of the Migration Act 1958 (Cth) involving the bringing of persons to Australia who were unlawful non-citizens EVIDENCE - standard of proof - establishing in civil proceedings the contravention of an offence provision - whether Commonwealth must negate defences under ss 10.1 and 10.3 of the Criminal Code 1995 (Cth) Schedule on balance of probabilities or beyond reasonable doubt - civil standard applied subject to the rule in Briginshaw v Briginshaw

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    CORPORATIONS - application to set aside a statutory demand or in the alternative for a permanent injunction - where creditor has refused to assign securities - whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) - whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt - whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction - application allowed.

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    PATENTS - interlocutory injunctions - undertakings as to damages - enforcement of undertakings - interlocutory injunctions wrongly granted - adverse effects of operation of interlocutory injunctions - losses of opportunity to supply - standard of proof - some loss proved on balance of probabilities - possibilities and probabilities of supply - supply under PBS and on private market - losses reasonably foreseeable - direct and indirect losses - remoteness of damage - illegality of hypothetical profits - abuse of process - assessment of loss - discretionary considerations. DAMAGES - interlocutory injunctions - undertakings as to damages - enforcement of undertakings - assessment of loss

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    EVIDENCE - expert opinion evidence - application that expert opinion evidence be ruled inadmissible - application for an order that evidence be excluded pursuant to s 135 Evidence Act 1995 (Cth)) - where claimed that expert witnesses not capable of being independent or impartial - where evidence otherwise admissible pursuant to s 79 of the Evidence Act 1995 (Cth) - whether independence is a precondition of competence for an expert witness - whether Expert Witness Practice Note and Harmonised Expert Witness Code of Conduct are mere "admonitions", "precepts or ideals", rather than legal requirements - where no demonstrated non-compliance with Part 23 Federal Court Rules 2011 (Cth) or the Expert Witness Practice Note or the Code - where evidence not unfairly prejudicial - applications refused

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    ADMINISTRATIVE LAW - Australian Crime Commission (ACC) - application for judicial review - whether the ACC Board had the power by an instrument in 2016 to amend a determination made in 2013 - s 33(3) of the Acts Interpretation Act 1901 (Cth) authorises amendment of a determination made pursuant to s 7C of the Australian Crime Commission Act 2002 (Cth) (ACC Act) - where s 7C amended after the making of the 2013 Determination but before the 2016 Instrument - whether the ACC Board had to comply with the amended s 7C when making the 2016 Instrument - whether the change to the special operation to make it one of indefinite duration was a change to the "reason, scope or purpose" of the operation - whether the Board complied with s 7C of the ACC Act in making the 2016 Instrument - whether the 2016 Instrument was a "new" determination - whether the 2016 Instrument should have been served on the Applicant pursuant to s 28(2) of the ACC Act when the 2016 Instrument did not exist at the time of the service of the summons - whether the 2016 Instrument is invalid as it provides for an operation of indefinite duration - application for judicial review dismissed.

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    MIGRATION - Application under s 39B of the Judiciary Act 1903 (Cth) alleging jurisdictional error by Federal Circuit Court in refusing an extension of time under s 477(2) of the Migration Act 1958 (Cth) - whether Federal Circuit Court denied the applicant procedural fairness in not responding to a post-hearing development by giving the applicant an opportunity to make submissions - whether Federal Circuit Court wrongly applied a higher threshold to the merits of the proposed grounds of review beyond a reasonably impressionistic analysis - whether Federal Circuit Court applied the wrong test in determining what constituted jurisdictional error - whether Federal Circuit Court wrongly found that the Minister would suffer prejudice if extension of time granted - application dismissed

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    NATIVE TITLE – interlocutory application in four native title proceedings that documents filed by the applicants and by the State of Queensland in each of those proceedings be available to each of those parties’ experts and to any expert retained by two named respondents to refer to and comment upon in any of those matters – where proposal for joint conferences of experts – implied undertaking – whether established that the use of documents made in one proceeding is reasonably required for the purpose of doing justice between the parties in the other proceedings

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    MIGRATION - claim for damages for false imprisonment relating to immigration detention - whether Migration Act 1958 (Cth) authorised a detention centre established under s 273(1) to be operated by a third party that was not an "officer of the Commonwealth" - where ss 189(1) and 196(1) authorised detention by, or on behalf of, an officer MIGRATION - whether s 61 of the Constitution contains an implied limitation that executive power may be lawfully exercised only by "officers of the Commonwealth" - where detention centre was operated by the second respondent as agent of the Commonwealth - whether detention involved the exercise of executive power - whether exercise of power authorised by statute DAMAGES - whether, had the claim been successful, damages should be awarded for unlawful detention - where applicant would have been liable to be detained in any event - whether quality of detention was worse compared to lawful detention CONTRIBUTION OR INDEMNITY - whether, had the claim been successful, Commonwealth breached an implied term of its contract with the second respondent (detention service provider) - whether Commonwealth would have been liable to contribution or indemnity under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

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    PRACTICE AND PROCEDURE – interim injunction – service of originating process – application for interim injunction granted on an ex parte basis.

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    PRACTICE AND PROCEDURE - patents - application to set aside a notice to produce - whether the documents sought are "mentioned" in an affidavit - whether the documents sought are relevant - notice to produce set aside

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