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Lastest Judgments from the Federal Court

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    MIGRATION - appeal from the Federal Circuit Court of Australia - partner visa - appellant found not to be genuine spouse of the sponsor - information subject to certificates issued under s 375A of the Migration Act 1958 (Cth) - Tribunal refused request by appellant's authorised recipient to extend time to comment on the information - whether the disclosure of the material under s 359A of the Migration Act was sufficient - whether the Tribunal fell into jurisdictional error by refusing to extend time to respond to adverse information - appeal dismissed

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    MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - Safe Haven Enterprise visa - review of a decision of the Immigration Assessment Authority to affirm delegate's decision to refuse visa - whether the authority treated an omission in the entry interview with sufficient caution pursuant to obiter dicta in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 - appeal dismissed

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    MIGRATION - application for leave to appeal from interlocutory decision of Federal Circuit Court - where applicant failed to attend Tribunal hearing - where applicant failed to apply for reinstatement at Tribunal - Tribunal bound to dismiss application - insufficient doubt as to correctness of primary Judge's decision - proposed grounds of appeal lack merit - leave to appeal refused PRACTICE AND PROCEDURE - oral application for adjournment - whether utility in applicant engaging legal practitioner - where six months between filing application and date of hearing - adjournment refused

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    MIGRATION - appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - where no grounds of appeal identified - held: appeal dismissed

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    REPRESENTATIVE PROCEEDINGS - application for court approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) - whether the proposed settlement is fair and reasonable - preclusion of class members whose claims were likely to be out of time -objections to settlement approval - where amounts sought to be deducted from the settlement sum by applicant's solicitor and funder would substantially consume the settlement - whether legal costs charged by legal representatives are reasonable and proportionate - whether proposed funding charges are reasonable and proportionate - whether a common fund order is appropriate - legal costs and funding charges are disproportionate and must be materially reduced - settlement approved with reduced costs and funding charges

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    COPYRIGHT - infringement - trailer wiring harnesses for inclusion in towbar kits - where the first respondent (Frontline) supplied towbar kits to automotive companies - where the first applicant (Lumen) supplied wiring harnesses to Frontline - where Frontline engaged the second and third respondents (Vision) to replicate Lumen's wiring harnesses - where Frontline provided Vision with samples, engineering drawings and the installation instructions for Lumen's products - whether Frontline and Vision infringed Lumen's copyright in the circuit markings on the printed circuit board in the electronic control unit, the engineering drawings and the installation instructions - whether Vision could make out defences under ss 77 and 115(3) of the Copyright Act 1968 (Cth) TRADE MARKS - infringement - installation instructions for towbar kits - where installation instructions included a depiction of a trailer socket with the applicants' name in small font - where the installation instructions were supplied with towbar kits including wiring harnesses from another supplier - whether the first respondent had established, for the purposes of the proviso to s 120(2) of the Trade Marks Act 1995 (Cth), that using the name as it did was not likely to deceive or cause confusion INTELLECTUAL PROPERTY - Circuit Layouts Act 1989 (Cth) - trailer wiring harnesses for inclusion in towbar kits - where the wiring harnesses included an electronic control unit that included a printed circuit board assembly - whether the printed circuit board assembly was an "integrated circuit" for the purposes of the Circuit Layouts Act DAMAGES - additional or exemplary damages - passing off, copyright infringement and trade mark infringement - trailer wiring harnesses for inclusion in towbar kits - where the first respondent (Frontline) supplied towbar kits to automotive companies - where the first applicant supplied wiring harnesses to Frontline - where Frontline substituted wiring harnesses from the second and third respondents - where Frontline did not disclose this to the automotive companies it supplied - where Frontline did not comply with the automotive companies' approval procedures for new parts - where Frontline failed to make discovery in the proceeding of a large number of relevant documents - applicable principles regarding additional or exemplary damages - whether additional or exemplary damages should be ordered and the quantum of any such damages

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    MIGRATION - notice of appeal from Federal Circuit Court - impermissible merits review - no appellable error identified PRACTICE AND PROCEDURE - request for pro bono assistance - whether appropriate to issue referral certificate - exercise of Court's discretion - grounds of appeal lack merit - request refused

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    PRACTICE AND PROCEDURE - interlocutory application to reinstate appeal from decision of Federal Circuit Court - where appellant failed to appear at hearing of appeal - where appeal dismissed pursuant to Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb) and Federal Court Rules 2011 (Cth) r 36.75(1) - principles guiding Court's discretion to reinstate proceeding - unsatisfactory medical evidence - grounds of appeal lack merit - poor prospects of success - repeated failures to attend hearings - disregard for Court process - application for reinstatement dismissed

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    MIGRATION - appeal from Federal Circuit Court - whether the primary judge erred in failing to find that the Immigration Assessment Authority incorrectly applied the complementary protection criterion and denied the appellant procedural fairness - whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) and failed to engage in a "thoughtful exercise" - appeal dismissed

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    CORPORATIONS - application for appointment of provisional liquidator - where application to wind up company brought pursuant to s 233 or s 461(k) of the Corporations Act 2001 (Cth) in the alternative - whether there is a reasonable prospect that the winding up order will be made - whether, having regard to the whole of the circumstances, the assets of the company are in jeopardy - whether measures less intrusive than the appointment of a provisional liquidator - usual undertaking as to damages

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    MIGRATION - application for protection visa - claims not accepted by Administrative Appeals Tribunal - alleged interpretation error before Federal Circuit Court of Australia - additional opportunity to file evidence and submissions - no evidence particularising alleged interpretation error or how it affected primary judge's decision - no error identified

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    MIGRATION - appeal from decision of the Federal Circuit Court of Australia - leave required to raise fresh grounds of appeal - principles relevant to grant of leave to raise new grounds of appeal - leave to raise fresh ground refused - appeal dismissed

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    PRACTICE AND PROCEDURE - application for leave to appeal - where decision of the primary Judge an interlocutory decision - consideration of circumstances in which leave may be granted - whether the Applicants discharged onus

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    MIGRATION - application for extension of time to appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - where Applicant applied for medical treatment visa outside prescribed time limit

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    MIGRATION - application for extension of time and leave to appeal from Federal Circuit Court - whether Court erred in dismissing appeal on show cause basis from Administrative Appeals Tribunal - where Applicant applied for medical treatment visa outside prescribed time limit

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    PRACTICE AND PROCEDURE - application for leave to further amend defence - inclusion of new particulars of truth as part of defence of justification - new allegations concerning applicant's conduct by prospective witness - where amendments of considerable potential importance to defence - where reasonable explanation for delay - where amendment application made at late stage in trial - where applicant would suffer prejudice as a result of amendments - application dismissed PRACTICE AND PROCEDURE - application pursuant to s 37AF Federal Court Act 1976 (Cth) - application for suppression and non-publication orders - where interim orders made pursuant to s 37AI Federal Court Act 1976 (Cth) - where publication of matters the subject of suppression or non-publication order would destroy, or frustrate or undermine, the purpose for which defamation proceedings are brought - where prejudice suffered by applicant if matters were published in connection with proceedings transcends mere embarrassment - whether circumstances amounted to the bringing of improper pressure to bear on applicant or constituted contempt of court or abuse of process - insufficient evidence to support a finding of abuse of process or contempt of court - interim suppression and non-publication orders continued until further order EVIDENCE - admissibility of file note of discussions between applicant's legal representatives, prospective witness's legal representatives and Registrar of the Court - whether file note covered by privilege in s 131 Evidence Act 1995 (Cth) - whether file note excluded by s 53B Federal Court Act 1976 (Cth) - whether discussions were part of a mediation - whether file note fell within exception in s 131(2)(k) Evidence Act 1995 (Cth) - file note admitted on the voir dire - file note ultimately excluded from evidence

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    PATENTS - where first applicant is the registered owner of a patent titled the Core Sample Orientation (the Patent) - where second applicant is the exclusive licensee of the Patent - consideration of the person skilled in the art - consideration of the field of the invention - consideration of the common general knowledge PATENTS - whether respondents have infringed various claims in the Patent - where claims in suit in the Patent are method claims and system claims PATENTS - consideration of the proper construction of the claims in suit - whether there is a lack of clarity in respect of the claims in suit - whether there is a lack of fair basis in respect of the claims in suit - whether there is a lack of utility in respect of the claims in suit PATENTS - where respondents filed a cross-claim challenging the validity of the claims in suit on a number of grounds - priority date of claims in suit - whether claims in suit are invalid due to a lack of novelty - whether claims in suit lack an inventive step having regard to common general knowledge alone and, in the alternative, common general knowledge and information falling within the terms of s 7(3) of the Patents Act 1990 (Cth) PRACTICE AND PROCEDURE - where order made prior to trial that issues of liability be heard and determined before issues of the quantum and any pecuniary relief - where claim for additional damages under s 122(1A) of the Patents Act - where entitlement to additional damages under s 122(1A) of the Patents Act, but not the quantum thereof should an entitlement be established, is a part of the hearing - whether applicants are entitled to additional damages

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    MIGRATION - appeal from decision of Federal Circuit Court - where respondents had refused protection visa to appellant - where evidence and candour of appellant not accepted by the respondent due to inconsistencies - whether Federal Circuit Court erred in not accepting evidence - whether Federal Circuit erred in considering or not considering certain factors - appeal dismissed

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    MIGRATION - application for an extension of time to appeal from decision of a judge of a Federal Circuit Court of Australia - where decision at first instance was interlocutory - where s 476A of the Migration Act 1958 (Cth) provides that Federal Court of Australian has no jurisdiction to hear such an application - application dismissed

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    COSTS - costs of the appeal

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