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Lastest Judgments from the Federal Court

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    INTELLECTUAL PROPERTY - trade marks - whether appellant's use of its marks was deceptively similar to respondent's marks - whether impermissibly took into account reputation - whether failed to consider the extent to which elements of the parties' respective trade marks are descriptive or common to the trade - whether error in primary judge's method in undertaking trade mark comparisons

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    PRACTICE AND PROCEDURE - application for variation of orders after entry so as to include an endorsement pursuant to r 41.06 of the Federal Court Rules 2011 (Cth) - where variation sought after time for compliance had lapsed - consideration of appropriate form or penal notice - whether variation available under rr 39.05 or 1.32 - application allowed

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    MIGRATION - appeal from refusal by the Federal Circuit Court of application to review decision of the Immigration Assessment Authority - whether untranslated material before the Minister's delegate forms part of the review material to be considered by the Authority - whether Authority must obtain translation - consideration of s 437DD of the Migration Act 1958 (Cth) - appeal dismissed

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    MIGRATION - leave sought to advance new grounds of review not argued before Federal Circuit Court - appeal grounds lack merit - leave refused

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeal Tribunal - whether error in Tribunal's consideration of exceptional reasons for grant of student visa - where Appellant did not appear at Tribunal hearing

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    INDUSTRIAL LAW - application for interlocutory injunction requiring respondent to reinstate applicant in employment - where applicant's employment was terminated on a summary basis - where applicant alleges respondent took adverse action because a workplace right was exercised - where respondent alleges that applicant breached Code of Conduct - application allowed

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    CORPORATIONS - application for leave to proceed against company in liquidation - whether leave should be granted - where applicant seeks to make trust claim against company - where Court previously imposed deadline for trust claims to be brought against company

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    TAXATION - appeal from an objection decision of the Commissioner of Taxation - where the taxpayer made gains from investments in the United States - where tax was paid in the United States on the gains realised - where the gains were also taxable under Australian tax law as capital gains - where the Commissioner denied the taxpayer a foreign income tax offset against his tax liability in Australia on the gains to the extent of half of the United States tax paid - issue as to what constitutes double taxation - consideration of Australia's foreign income tax offset provisions in Div 770 of the Income Tax Assessment Act 1997 (Cth), particularly s 770-10(1) - construction of the terms 'included in' and 'in respect of' in s 770-10(1) - whether the Commissioner's construction is inconsistent with Art 22(2) of the Convention between the Government of Australia and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income Held: an amount cannot be said to have been doubly taxed where it is not an amount included in assessable income Held: the construction of s 770-10(1) adopted by the Court is not inconsistent with Art 22(2) of the Convention and the 'general principles' it espouses

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    PRACTICE AND PROCEDURE - proceedings commenced by notice of appeal - Court having no jurisdiction - whether proceedings can and should be treated as an application for judicial review invoking the Court's original jurisdiction - proceedings dismissed

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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 the Minister engaged in a process of reasoning that was illogical, irrational, legally unreasonable or affected by an undisclosed legal error

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    COSTS - interlocutory application for security for costs issued by the first, second, third, fourth sixth, seventh and eight respondents - interlocutory application for security for costs issued by the fifth respondent - both interlocutory applications brought pursuant to s 56(1) of the Federal Court of Australia Act 1976 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth) - where applicants are private individuals, not corporations - where disposition not to make an order for security for costs against private individuals - whether reason to believe that the applicants will be unable to pay the respondents' costs if so ordered - consideration of the likely costs of the respondents of the proceeding and the net assets of the applicants - whether, having regard to the circumstances, there will be injustice to the respondents if they are required to defend the proceeding without the applicants providing security for costs - whether applicants engaged in a two-case strategy - consideration of other relevant factors which would warrant an order for security for costs against private individuals - whether applicants have an arguable or triable case - whether order for security for costs would shut the applicants out of pursuing the case - whether the applicants' impecuniosity arises out of the breaches alleged against the respondents - whether public interest considerations weigh in the balance against an order for security for costs and discretionary matters peculiar to the case - whether substantial risk that the applicants cannot satisfy an order for costs

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    NATIVE TITLE - application under s 66B of the Native Title Act 1993 (Cth) to replace the existing applicant for a native title determination application

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    MIGRATION - application for protection visa - claims not accepted by Administrative Appeals Tribunal - no jurisdictional error found by Federal Circuit Court - leave sought to raise new ground of appeal - no real prospects of success - appeal dismissed

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    MIGRATION - application for protection visa - where first application for protection visa refused - where second application for protection visa made in circumstances where appellant had not left migration zone - whether appellant denied procedural fairness due to matter not being referred to Minister personally but instead assessed according to Minister's guidelines - no failure to accord procedural fairness - appeal dismissed

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    MIGRATION - application for extension of time in which to appeal - proposed appeal without merit - application refused

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    MIGRATION - cancellation of visa on character grounds - non-revocation of cancellation decision mandated by s 501(3A) of the Migration Act 1958 (Cth) - applicant convicted of serious drug offences - application for judicial review of decision of Administrative Appeals Tribunal affirming non-revocation decision - findings of Tribunal open on the material before it - no breach of the rules of procedural fairness - no jurisdictional error established

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    PATENTS - construction of claims - (+) and (-)-enantiomers - where patent claims separated (+)-enantiomer - no defence to infringement where only trace, trivial or insignificant amounts of (-)-enantiomer present in infringing products - claims of patent infringed PATENTS - whether patentee/exclusive licensee prevented from brining infringement proceedings under provisions of the Patents Act 1990 (Cth) CONTRACTS - construction of settlement agreement - licence to exploit the invention the subject of the patent in suit - licence no defence to infringement DAMAGES - innocent infringement - discretionary defences - whether award of additional damages appropriate - assessment of damages for patent infringement - object of award of damages to restore patentee and/or exclusive licensee to the position each would have been in but for infringement

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    MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing the appellants' application for judicial review - where the Administrative Appeals Tribunal (Tribunal) affirmed the decision of a delegate not to grant the appellants temporary business entry visas - where the delegate's decision was affected by clear error - whether the Tribunal was required to review the delegate's decision and whether in this case no such review took place - whether the Tribunal was obliged, under s 359A of the Migration Act 1958 (Cth), to give the appellants clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review - appeal dismissed.

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    MIGRATION - protection visa - dual nationality - content of right to re-enter and reside - nationality does not equate to a right to re-enter and reside - Migration Act 1958 (Cth) s 91M

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    MIGRATION - appeal from a judgment of the Federal Circuit Court - whether the primary judge erred in failing to conclude that the decision of the Immigration Assessment Authority was affected by legal unreasonableness

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