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Lastest Judgments from the Federal Court

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    BANKRUPTCY - disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) - application for order under s 133(9) vesting property in mortgagee subject to conditions - whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy - consistency of doctrine of escheat with Torrens title land, statutory powers of disclaimer and constitutional context - effect of disclaimer occurring under Commonwealth law - better view may be that land does not escheat upon disclaimer, rather the legal title is held by the Crown on trust for statutory purposes until the Court makes an order vesting it pursuant to s 133(9). MORTGAGES - disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) for onerous covenants - position of registered mortgagee - realisation of mortgagee's security to repay debt - whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy - mortgagee's right to apply for order vesting fee simple in the property the subject of the mortgage in it following disclaimer - appropriate terms and conditions of vesting order.

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    MIGRATION - appeal from Federal Circuit Court - application for judicial review - where Administrative Appeals Tribunal affirmed refusal to grant appellant a Protection (Class XA) visa - where Tribunal made adverse credit finding - decision not affected by jurisdictional error - appeal dismissed

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    MIGRATION - final consideration after the filing of further submissions on behalf of the Minister for Home Affairs of the question of whether the Federal Circuit Court of Australia fell into error in concluding that no power resides in the Administrative Appeals Tribunal (the "Tribunal") to extend the time for the making of an application for review of a Part 5 - reviewable decision under s 347(1)(b) of the Migration Act 1958 (Cth) (the "Act") - consideration of whether the Tribunal fell into jurisdictional error by concluding that the Tribunal had no power to extend the time for the making of an application under s 347(1)(b) of the Migration Act

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    MIGRATION - application for extension of time to appeal from decision of the Federal Circuit Court of Australia - where leave would be required to rely on grounds not raised in Federal Circuit Court if an extension granted - whether proposed grounds of appeal have sufficient merit to warrant leave and extension of time

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    MIGRATION - application for leave to appeal from Federal Circuit Court - where Administrative Appeals Tribunal affirmed refusal to grant applicant a protection visa - where Tribunal made adverse credit finding - decision not affected by jurisdictional error - where no unfairness demonstrated in conduct of Federal Circuit Court proceedings arising from lack of legal aid - application dismissed

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    MIGRATION - application for extension of time to appeal - where Federal Circuit Court of Australia dismissed application for judicial review - where Immigration Assessment Authority not satisfied of exceptional circumstances to consider new information

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    MIGRATION - application for leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (FCCA) - where the applicant filed a judicial review application in the FCCA in respect of a decision of the Administrative Appeals Tribunal (AAT) refusing to grant her a protection visa - where the applicant discontinued that judicial review application and, on that same day, filed a second judicial review application in the FCCA in respect of the same AAT decision - where the applicant did not disclose the existence of the first judicial review application in her second judicial review application, in breach of s 486D of the Migration Act 1958 (Cth) - whether the primary judge erred in determining that s 486D imposed a jurisdictional precondition to the commencement of the second judicial review application such that the failure to comply with the disclosure requirement meant that the FCCA lacked jurisdiction to hear and determine the second judicial review application PRACTICE AND PROCEDURE - application for leave to appeal from a judgment and orders of the FCCA - whether the primary judge's decision is attended by sufficient doubt to warrant reconsideration - whether substantial injustice would result to the applicant if leave to appeal were refused, supposing the decision to be wrong

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    REPRESENTATIVE PROCEEDINGS - permanent stay of proceedings - leave to appeal - three overlapping open securities class actions against the same respondent - consideration of remedial response to competing class actions - substantially the same claims and substantially the same causes of action - advantages of a funding model linking risk and return to funders by reference to costs incurred - comparative analysis of proceedings including proposals for reducing legal costs and likely return to group members - whether a continuation of duplicative proceedings would amount to an abuse of process - scope of ss 33N and 33ZF of the Federal Court of Australia Act 1976 (Cth) - permanent stay of two of the proceedings - leave to appeal granted - appeal dismissed - common fund order - leave to appeal refused - restraint against legal practitioners from communicating with group members - leave to appeal granted - appeal allowed

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    COSTS - Federal Court Rules 2011 (Cth) r 40.51 - Court considering making an order under r 40.51 on its own motion that the maximum costs recoverable on a party and party basis be capped - consideration of proposed caps on costs submitted by the parties to the proceedings - cap on costs ordered.

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    MIGRATION - application for leave to appeal - where application for judicial review was dismissed at a show cause hearing in the Federal Circuit Court - whether the judgment is attended by sufficient doubt to warrant leave to appeal - leave to appeal granted

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    MIGRATION - application for protection visa - appeal from decision of Federal Circuit Court dismissing application for review of Tribunal decision - application to file further documents not before Tribunal and primary Judge -no jurisdictional error - no appellable error - appeal dismissed

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    BANKRUPTCY AND INSOLVENCY - Letter of Request to foreign Court exercising jurisdiction in bankruptcy to act in aid of and be auxiliary to the Federal Court of Australia

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    PRACTICE AND PROCEDURE - appropriate form of final orders where findings made that Court had no jurisdiction to hear application - representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) - whether notice should be given of dismissal of proceeding under s 33X(5) - whether dismissal of proceeding should be stayed - not appropriate to make further orders under s 33X - not appropriate to stay dismissal COSTS - appropriate order as to costs - where Commonwealth sought costs of interlocutory application for strike out and costs in the proceeding - whether Court should exercise discretion not to order costs in all the circumstances of the proceeding - where argued that proceeding in the public interest or of public importance - where proceeding concerned the exercise of public power so as to deprive individuals of their liberty - no order made as to costs

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    INDUSTRIAL LAW - admitted contraventions of ss 346 and 417 of the Fair Work Act 2009 (Cth) - making of declarations

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    MIGRATION - applicant's visa cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) ("Act") - decision not to revoke cancellation decision pursuant to s 501CA(4) of the Act - application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal") under s 476A of the Act - whether Tribunal's decision affected by an error of law - discussion of authorities and principles relevant to whether the Tribunal may look behind or impugn the conviction or sentence that is a precondition to the exercise of power - whether the applicant's evidence to the Tribunal was inconsistent with the essential factual elements of the offence or findings of the sentencing judge - whether there was "no evidence" for findings of fact made by the Tribunal - whether Tribunal made findings of fact that were irrational or illogical - jurisdictional error not established - appeal dismissed

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    MIGRATION - s 501 of Migration Act 1958 (Cth) - prior criminal convictions led to failure of character test and cancellation of visa - whether Tribunal failed to give active intellectual consideration to non-refoulement obligations - application dismissed

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    MIGRATION - decision of Immigration Assessment Authority to affirm refusal to grant protection visa - review application refused by Federal Circuit Court - whether the Authority erred in its assessment of whether to consider new information - whether Authority applied wrong legal approach in forming the view that it was not satisfied that there were exceptional circumstances to justify considering new information - consideration of s 473DD of the Migration Act 1958 (Cth) - no jurisdictional error - appeal dismissed

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    MIGRATION - appeal from Federal Circuit Court - alleged jurisdictional error by Tribunal constituted by failure to disclose existence of certificate issued under s 438 of Migration Act 1958 (Cth) - point not raised before Federal Circuit Court - evidence on appeal that no such certificate even issued. Held - leave to amend refused - appeal dismissed.

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    MIGRATION - where Minister refused to grant medical treatment visa under cll 602.212 and 602.213 and Sch 3 item 3001 Migration Regulations 1994 (Cth) - where application made more than 28 days after applicant’s last substantive visa expired - whether jurisdictional error - where no other result available to the Minister and the Tribunal

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