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Lastest Judgments from the Federal Court
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    MIGRATION - Safe Haven Enterprise visa (SHEV) - appeal from the Federal Circuit Court of Australia - Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a SHEV - where appellant seeks leave to rely on ground in draft notice of appeal - whether proposed ground was raised in the proceedings in the Federal Circuit Court - where IAA determined that two DFAT reports supplied to it by the appellant were not 'new information' for the purposes of s 473DC and s 473DD of the Migration Act 1958 (Cth) - where one DFAT report was not referred to in the delegate's decision record - whether the Tribunal fell into jurisdictional error by not refusing to admit that DFAT report - leave to rely on proposed ground in the draft notice of appeal refused - appeal dismissed

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    TRADE MARKS - appropriate form of orders to give effect to reasons for judgment, particularly in relation to goods and services in Class 19, Class 20, Class 35 and Class 37 - appropriate costs order in proceedings before the Registrar where appeals allowed in light of evidence that was not before the Registrar COSTS - appropriate order where parties have mixed success

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    COSTS - appeal from Federal Circuit Court - whether Court erred in ordering costs pursuant to Fair Work Act 2009 (Cth) s 570 - whether proceedings instituted vexatiously - whether costs incurred by unreasonable act - where Appellant discontinued proceedings

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    PRACTICE AND PROCEDURE - application to amend pleadings to include copyright infringement case - where respondents claim amendments would postpone hearing dates

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    MIGRATION - consideration of an interlocutory application for leave to rely upon particular documents and oral evidence on the hearing of an appeal

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    CORPORATIONS - application under s 439A(6) of the Corporations Act 2001 (Cth) to extend the period in which the plaintiff must convene the meeting of the creditors of the defendant company under s 439A(1) - orders granted

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    PRACTICE AND PROCEDURE - application for leave to proceed under subs 500(2) of the Corporations Act 2001 (Cth) - where serious question as to appropriate penalties for contravening conduct remains to be tried - where strong public interest in proceedings continuing - where contravening corporation has submitted to the orders of the Court save as to costs - application allowed

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    BANKRUPTCY AND INSOLVENCY - where applicant (a bankrupt) seeks his trustee's consent to travel overseas - where trustee gives consent on condition of payment of specific sum to bankrupt's estate - whether Court should direct trustee to give consent without that condition and, if so, on what conditions

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    INDUSTRIAL LAW - application for declaration that the respondent breached s 119(1)(a) of the Fair Work Act 2009 (Cth) - where employer terminated the employment of employees after losing a customer contract for services - where employer did not pay redundancy payments to the terminated employees - where employer sought to rely on 'ordinary and customary turnover of labour' exception in s 119(1)(a) - whether terminations were due to 'ordinary and customary turnover of labour' - whether exception should be construed by reference to industrial law decisions prior to enactment of s 119(1)(a) - whether previous decision to the effect that previous case law was of limited value in statutory construction should not be followed - declaration of contravention of s 119(1)(a) by failing to pay redundancy upon termination of employment INDUSTRIAL LAW - whether decision to dismiss employees gave rise to an obligation to notify Centrelink of the dismissals under s 530(1) of the Act - consideration of statutory construction of phrases 'reasons of economic, technological, structural or similar nature' and 'genuine operational reasons' - no contravention of s 530(1)

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    PRACTICE AND PROCEDURE - application for maximum costs order pursuant to r 40.51 of Federal Court Rules 2011 (Cth) - whether maximum costs order should be made - whether proceedings in public interest - whether application premature - where Applicant claims breaches of statutory and equitable duties of superannuation trustee regarding climate change risks - where Applicant indemnified by third party to a maximum amount

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in summarily dismissing appeal on show cause basis from Immigration Assessment Authority - whether Applicant had arguable case for jurisdictional error - where Applicant alleged inconsistency between Authority's reliance on country reports

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    CORPORATIONS - application for direction pursuant to s 90-15 of Insolvency Practice Schedule (Corporations) - whether liquidators justified in treating monies as company assets - whether trust claims can be determined under s 90-15 - where direction opposed by unpaid vendors asserting trusts over monies

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    MIGRATION - application for extension of time and leave to appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal for non-appearance - where Applicant sought adjournment on day of hearing for medical reasons - where Applicant indicated to Minister that he could appear by telephone

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    PRACTICE AND PROCEDURE - application for disqualification of judge on the basis of apprehended bias - whether hypothetical lay observer might apprehend that a settlement approval application pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) might be determined otherwise than on its merits - disqualification application dismissed PRACTICE AND PROCEDURE - observations on appropriate procedure for raising the issue of apprehended bias

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    CORPORATIONS - examination - application for review of orders made by Judicial Registrar - real risk of harm to the administration of justice by publication of parts of examination transcript - application for review upheld

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    PRACTICE AND PROCEDURE - application for extension of time to seek judicial review of decision of the Administrative Appeals Tribunal - reasonable explanation for delay - no particular prejudice to the respondent - merits of the application - where respondent did not oppose extension of time - extension of time granted MIGRATION - application for review of decision of the Administrative Appeals Tribunal not to revoke mandatory cancellation of visa by delegate under s 501CA(4) of Migration Act 1958 (Cth) - whether Tribunal erred in its consideration of the best interests of minor children in Australia affected by the decision - whether Tribunal erred in taking into account the applicant's conduct as a child under the age of 10 - whether Tribunal failed to take into account a claim before it about how applicant's removal would affect the applicant's mother and stepfather's relationship and thereby contributed to his difficulties if removed from Australia - decision of the Tribunal set aside

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    EXTRADITION - application for review under s 21 of the Extradition Act 1988 (Cth) - whether Court satisfied that requirements of ss 19(2)(b) and 19(2)(c) established - consideration of the dual criminality requirement of s 19(2)(c) - held: application dismissed

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    NATIVE TITLE - non-claimant application for a negative determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) - where the application is unopposed under s 86G of the NTA - the principles relevant to the exercise of the Court's discretion to make a negative native title determination - the nature of s 24FA protection - the difficulties associated with s 42 of the Aboriginal Land Rights Act 1983 (NSW) - whether negative native title determinations can be granted solely on the basis of satisfying the formal requirements of the NTA - the onus of the non-claimant applicant to prove, on the balance of probabilities, that native title does not exist on the relevant area of land - the importance of adducing sufficient evidence to discharge that onus