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Lastest Judgments from the Federal Court

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    PRACTICE AND PROCEDURE - security for costs - application pursuant to s 56 Federal Court of Australia Act 1976 (Cth) and s 1335 Corporations Act 2001 (Cth) - where evidence of likely costs in matter unchallenged - where real risk that respondent will be unable to recover its costs if successful at final hearing - where order for security would not stifle applicant's claim - order for security for costs made

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    MIGRATION - appeal from Federal Circuit Court of Australia, dismissing application for judicial review of decision of the Refugee Review Tribunal - citizen of Nepal claiming a protection visa on the basis of her Nepalese inter-caste marriage and her husband's subsequent estrangement from her in Australia

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    MIGRATION - appeal from Federal Circuit Court - Subclass 485 visa application - refusal to grant Skilled (Provisional) (Class VC) visa - where a criterion for the grant of that visa is evidence that the applicant had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made - where appellant erroneously applied for national police check from wrong organisation

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    COSTS - assessment of lump sum costs order - where determination on the papers deferred until after respondent's appeal heard and determined - where appeal dismissed on 19 October 2018 - respondent ordered to pay lump sum costs in the amount of $21,000

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    TORTS - misfeasance in public office - elements of the tort - whether actions of administrative officials constituted exercise of public power - whether administrative decision-makers actions' and officials' actions pursued with malice - whether administrative decision-makers actions' and officials' actions pursued with knowledge of, or reckless indifference to, whether the actions were in excess of power and knowledge of, or reckless indifference to, the possibility that the actions would cause or be likely to cause injury - whether Commonwealth of Australia vicariously liable - whether applicants suffered damage - held: tort of misfeasance in public office not established - vicarious liability not established - application dismissed with costs

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    MIGRATION - application for extension of time to bring application for judicial review of decision of the Minister for Home Affairs not to revoke a mandatory visa cancellation - whether Minister failed to properly consider the expectations of the Australian community - whether Minister failed to properly consider evidence - whether Minister failed to properly consider representations made by the applicant - whether Minister erred in characterising the seriousness of a criminal offence - whether Minister erred in consideration of applicant's risk of harm to the Australian community - held: extension of time granted in relation to one ground of review only and refused in relation to other grounds - held: amended originating application dismissed with costs

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    MIGRATION - Partner visa - whether visa applicant spouse of the sponsoring partner - finding that visa applicant and sponsor did not have a mutual commitment to a shared life as husband and wife - finding that relationship was not genuine and continuing - whether the Tribunal applied the wrong test ADMINISTRATIVE LAW - reasonable apprehension of bias - unreasonableness - whether evidence relied upon had no probative weight - whether error in the way in which the Tribunal considered the circumstances of the relationship

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    MIGRATION - appeal from judgment of Federal Circuit Court - failure by appellant to appear - appeal dismissed

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    INDUSTRIAL LAW - Fair Work - Work Health and Safety - whether John Holland Pty Limited had a workplace right - whether John Holland Pty Limited exercised a workplace right - whether the appellants engaged in adverse action within the meaning of section 342 and item 7(a) of the Fair Work Act 2009 (Cth) - whether the appellants engaged in adverse action within the meaning of section 342 and item 7(c) of the Fair Work Act 2009 (Cth) - whether the appellants contravened section 340 of the Fair Work Act 2009 (Cth) - the reverse onus provided for in section 361 of the Fair Work Act 2009 (Cth) - whether the first appellant engaged in action in contravention of section 343 of the Fair Work Act 2009 (Cth) - coercion - whether conduct was unlawful, illegitimate or unconscionable - penalties manifestly excessive - appeal allowed

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    PATENTS - claims for catheter insertion device - claim construction - meaning of "needle protective device" - whether claims infringed PATENTS - whether claims entitled to priority date based on prior application - whether claims fairly based on matter disclosed in prior application PATENTS - whether claims invalid for non-compliance with s 40(3) on the ground that they are not fairly based on the matter described in the specification PATENTS - inventive step - whether claims invalid for lack of inventive step

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    MIGRATION - application for extension of time to apply for judicial review - where applicant's Class XB, Subclass 200 Refugee (Permanent) visa cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) - where Assistant Minister for Immigration and Border Protection refused to revoke visa cancellation - whether Assistant Minister fell into jurisdictional error - whether Assistant Minister failed to consider a reason put forward in support of revocation which constituted a denial of procedural fairness - whether Assistant Minister failed to properly complete his statutory task - whether Assistant Minister misunderstood legal consequence of non-revocation decision - operation of s 197C and s 198 of the Act - whether Ministerial Direction 75 does not guarantee non-refoulement obligations will be assessed in a subsequent protection visa application as it does not bind the Minister - different nature of decisions under s 65 and s 501CA(4) - whether "practical injustice" as applicant deprived opportunity to have non-refoulement representations considered at stage of weighing up and discretion - application dismissed

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    BANKRUPTCY AND INSOLVENCY - appeal from orders of the Federal Circuit Court of Australia - where primary judge dismissed applications for an adjournment, for a stay of the proceedings and for review of a sequestration order - where primary judge set aside a notice to produce - where application in this Court to stay the sequestration order and proceedings pending the determination of this appeal previously dismissed - where application to reopen appeal allowed - whether primary judge erred in refusing to grant an adjournment - whether primary judge erred in dealing with the notice to produce - whether primary judge erred by accepting respondent's legal breach - whether primary judge erred in approach to de novo hearing - whether primary judge gave unfair weight to submissions and declarations of the Deputy Commissioner of Taxation - whether the primary judge demonstrated a reasonable apprehension of or actual bias - whether primary judge erred in extemporaneously dismissing application - whether primary judge failed to give adequate reasons - whether primary judge erred by basing decision on a lack of evidence - appeal dismissed

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    MIGRATION - appeal from Federal Court of Australia - where delegate of the Minister for Home Affairs refused to grant appellant a partner visa on character grounds under s 501 of the Migration Act 1958 (Cth) - where Administrative Appeals Tribunal affirmed delegate's decision - where primary judge dismissed application for judicial review of Tribunal's decision - where review grounds amended before primary judge - where grounds on appeal in same terms as original grounds raised and abandoned before primary judge - whether primary judge erred in not finding Tribunal erred by not giving primary weight to best interests of appellant's children - whether Tribunal's decision affected by apprehended and/or actual bias - whether Tribunal failed to take into account relevant considerations or relied on irrelevant considerations - whether primary judge failed to make a finding that Tribunal's decision unreasonable - appeal dismissed

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    HUMAN RIGHTS - Privacy - where the applicant claimed compensation from the Department of Veterans' Affairs (DVA) for injuries he suffered while serving as a member of the Royal Australian Air Force and Australian Defence Force - where the applicant was dissatisfied with the processing of his claims by DVA and engaged in vitriolic, threatening and offensive language towards DVA personnel - whether the Administrative Appeals Tribunal erred in finding that DVA had not breached s 14 of the Privacy Act 1988 (Cth) and Information Privacy Principles 11.1(a) or (d) by disclosing the applicant's personal information to a senior medical officer, the Head of Joint Health Command in the Department of Defence and the Chief of Air Force STATUTORY INTERPRETATION - construction of the Privacy Act 1988 (Cth) and Information Privacy Principle 11.1 - whether the applicant was reasonably likely to have been aware that information of the kind disclosed by DVA was usually passed to those to whom the disclosures were made - whether disclosure was required or authorised by or under law

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    INDUSTRIAL LAW - alleged contraventions of s 285(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) - where first respondent admits related contraventions - where second respondent rejects allegations made - whether second respondent, as the Secretary of the WA Branch of the Australian Nursing and Midwifery Federation, failed to discharge his role with the degree of care and diligence that a reasonable branch secretary would have exercised in the relevant circumstances - obligation to lodge statutory returns in a timely manner - where 14 separate allegations made, or alternatively one allegation over a period of three years - where parties agree annual statutory returns were lodged late - whether statutory returns prepared as soon as practicable in the circumstances - allocation of proper resources - whether regulator condoned conduct - business judgment under s 285(2) of the Act - operation of s 292 of the Act as to reliance on others - whether second respondent should be excused under 315(2) of the Act - where second respondent contravened s 285(1) of the Act

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    COSTS - 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 and questions of costs - where damages awarded in the total sum of $30,000 - where more favourable Notice of Offer to Compromise served on applicant in 2014 under Pt 25 of the Federal Court Rules 2011 (Cth) - where applicant rejected offer - where applicant's causes of action had mixed success - no costs ordered prior to relevant date as outlined in R 25.14(1) of the Rules - costs ordered on an indemnity basis thereafter - damages order stayed pending assessment of costs - award of damages and costs order to be set-off against one another

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    MIGRATION - application for extension of time to appeal - whether proposed appeal meritorious

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    MIGRATION - application for extension of time to appeal - whether proposed appeal meritorious

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