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Lastest Judgments from the Federal Court

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    COPYRIGHT - alleged infringement under ss 36(1), 37 and 38 of the Copyright Act 1968 (Cth) - where applicant and respondent retail bed linen products designed in-house - where copyright claimed in three artistic works comprising surface design of bed linen products - where applicant and respondent commissioned same third party to manufacture bed linen products - whether respondent knowingly instructed manufacturer to copy applicant's proprietary designs - whether applicant established ownership of each artistic work - principles applicable to establishing substantial reproduction - whether respondent reproduced substantial part of any of the artistic works - whether respondent had actual or constructive knowledge of acts constituting infringement - whether innocent infringement defence established DAMAGES - quantum of damages under s 115(2) of the Copyright Act 1968 (Cth) - calculation of damages for loss of profits, loss of reputation, and devaluation of artistic works where evidence unsatisfactory - whether applicant entitled to additional damages under s 115(4) of the Copyright Act 1968 (Cth) - adequacy of steps taken by respondent after being put on notice of infringement claims

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    CORPORATIONS - external administration - application to extend period of adjournment of second meetings of creditors beyond prescribed period - orders granted

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    PRACTICE AND PROCEDURE - application by a company that has been deregistered to set aside a winding up order made by a registrar of the court - application dismissed - former director of applicant ordered to pay costs

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    CORPORATIONS - securities - share scheme - equity capital raising opportunity - director setting up secondary market in shares - grey market in shares - breach of director's duties - ss 181 to 183 of the Corporations Act 2001 (Cth) - breach of fiduciary duties - use of off-shore corporations - diversion of business opportunity - action by director to divert direct investment - discussion of Beam v Stewart 833 A 2d 961 (Del Ch, 2003) - limitations on equity capital raising under Singaporean law - ss 2(2), 240(1), 272A, 272B, 274 and 275 of Securities and Futures Act (Singapore, cap 289) - related party transactions - related party loans - non-disclosure of interest - conversion options under loans - uncommerciality of terms - strike price for conversion option less than market value - accessorial liability of other participants

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    MIGRATION - protection visa application - adverse credibility findings by Tribunal - grounds for judicial review amounting to disagreement on merits - primary judge concluding Tribunal's findings open to be made on the material before it - no appealable error

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    MIGRATION - appeal from a decision of the Federal Circuit Court (FCC) setting aside the decision of the Administrative Appeal Tribunal (Tribunal) - whether the Tribunal had applied correctly the test for a well-founded fear of persecution contained in s 5J(1) of the Migration Act 1958 (Cth) - error of approach indicated jurisdictional error - appeal dismissed.

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    CORPORATIONS - application pursuant to s 477(2B) of the Corporations Act 2001 (Cth) (Act) for the Court's retrospective approval of funding and costs agreements entered into by the liquidator - whether approval should be granted nunc pro tunc - application allowed. CORPORATIONS - application by a liquidator for an order pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), Sch 2 to the Act, that he is justified in redacting certain details on forms lodged with the Australian Securities and Investments Commission - application allowed. PRACTICE AND PROCEDURE - application by a liquidator for non-publication orders pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) - whether orders necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) of the FCA Act - application allowed.

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    COSTS - lump sum costs - whether costs should be fixed in a lump sum - application allowed.

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    Practice and Procedure

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    BANKRUPTCY AND INSOLVENCY - proofs of debt; where companies subject to deeds of company arrangement owe amounts to various lenders; where debts are unsecured; where debts are guaranteed by solvent companies in the same corporate group; where the solvent companies are sold and the proceeds distributed to the lenders pursuant to contractual arrangements; where sale proceeds insufficient to discharge the amounts owing in full; where proofs of debt are lodged by the lenders for the full amount owing to each of them without deduction for the amounts received by them from the sale of the guarantor companies; where other unsecured creditors object to the deed administrators admitting the proofs of debt without making that deduction - whether deed administrators are contractually bound to admit proofs of debt lodged by the lenders for the total amounts owing to them without deduction for the sale proceeds received by them. CONTRACTS - contract construction; recourse to background and surrounding circumstances - whether construction needed to avoid commercial nonsense or working commercial inconvenience.

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    PRACTICE AND PROCEDURE - application for extension of time for review of decision of Registrar dismissing winding up application - no evidence as to delay - merits of the application - where no arguable case CORPORATIONS - winding up - failure to comply with statutory demand - whether service of demand and winding up application abuse of process - where claim not quantified - where numerous statutory demands issued - merits of winding up application if hearing de novo proceeds - where company has no other debts due and payable CORPORATIONS - winding up - period for determination of winding up application prescribed by s 459R of the Corporations Act 2001 (Cth) - where period expired prior to proposed review - no application for extension of time - whether expiry renders review of decision of Registrar futile - whether slip rule applies

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    PRACTICE AND PROCEDURE - appeal from orders made by a judge of the Supreme Court of New South Wales - appellant granted extension of time within which to appeal by a single judge of this Court limited to nine grounds TRUSTS AND TRUSTEES - whether the primary judge erred in holding that the respondent trustee in bankruptcy had a caveatable interest in real property held by the bankrupt on trust by operation of s 58(1)(a) of the Bankruptcy Act 1966 (Cth) - whether the primary judge erred in holding that the existence of a caveatable interest was, in the circumstances, sufficient to defeat the appellant's claim and it was not necessary to consider whether the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property - consideration of the law as to reasonable cause - where the appellant has the onus of establishing the absence of reasonable cause TRUSTS AND TRUSTEES - whether the primary judge erred in holding that even if the respondent did not have a caveatable interest in the property, the appellant's claim nevertheless fails if it is found that the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property - whether the primary judge erred in holding that an honest belief was part of the test and the test was not wholly objective - whether the primary judge erred in finding that the respondent had an honest belief based on reasonable grounds that he had a caveatable interest in the property TRUSTS AND TRUSTEES - whether the primary judge erred in not finding that the appellant had failed to prove that the respondent did not have a right of indemnity by reason of the bankrupt's expenditure of funds in the performance of the trust and, therefore, a caveatable interest

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    PRACTICE AND PROCEDURE - interlocutory application for an order to be recognised as an amicus curiae in the proceedings - Interlocutory Applicant is a member of the Applicant group in the native title proceedings - role of an amicus curiae - application refused.

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    CONSUMER LAW - misleading or deceptive conduct - whether alleged representations made - whether primary judge gave overly technical meaning to words - whether primary judge required to have regard to range of characteristics of target audience - whether primary judge failed to draw inferences from evidence - whether primary judge failed to consider dominant message - where Respondent provided private health insurance - where target audience public at large - unconscionable conduct - failure to notify decision - whether conduct unconscionable in contravention of s 21 of the Australian Consumer Law

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    NATIVE TITLE - appeal from native title determination and orders of Federal Court of Australia - where primary judge dismissed Goolarabooloo native title claim - where primary judge found that rights arising from a rayi connection within determination area are not native title rights or interests within meaning of s 223 of the Native Title Act 1993 (Cth) (NTA) - where primary judge found that function and rights of persons who are ritual leaders in relation to areas or places within determination area are not native title rights or interests within meaning of s 223 of the NTA - whether primary judge's findings made in error - appeal dismissed NATIVE TITLE - appeal from native title determination and orders of Federal Court of Australia - where primary judge determined nature and extent of other interests in relation to determination areas of the Bindunbur and Jabirr Jabirr/Ngumbarl native title claim groups - where other interests included public access to and enjoyment of waterways; beds and banks or foreshores of waterways; coastal waters; or beaches - construction and operation of ss 212, 225(c) and 253 of the NTA - operation of s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) - where primary judge found that an ability in the public to access unallocated Crown land is an "interest" for the purposes of s 253 of the NTA and so should be included in the determinations - where primary judge found such an ability is a "privilege" for the purposes of the definition of interest in s 253 - appeal allowed

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    NATIVE TITLE - consent determination of native title - agreement of parties - s 87 of the Native Title Act 1993 (Cth)

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    PRACTICE AND PROCEDURE - costs - application for lump sum costs assessment - costs incurred in responding to a subpoena - relevant principles regarding lump sum cost assessments - lump sum costs assessment made

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