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That application for judicial review was brought pursuant to s 483A of the Migration Act 1958 (Cth), which has been subsequently repealed; however the repeal did not affect the continuance of the proceedings before the Federal Magistrates Court. The Tribunal affirmed the decision of a delegate of the respondent Ministe... | whether breach established of s 424a(1) of the migration act concerning provision by tribunal of particulars whether denial of procedural fairness migration |
As the issues in each proceeding are inter-related I have decided to publish one reasons for judgment which explain the reasons for making interlocutory orders in each proceeding. The applicant also relies upon ss 39B(1) and 1A(c) of the Judiciary Act 1903 (Cth) ("the Judiciary Act "). The proposed decision by the Mini... | interlocutory injunctions relevant principles serious question to be tried northern territory emergency response act 2007 s 47 compulsory acquisition alice springs town camps whether failure to accord natural justice whether contrary to members' interests as a whole balance of convenience injunctions |
The applicant is the Gandangara Local Aboriginal Land Council. It filed an application on 25 November 2008 for a determination that there was no native title in the parcel of freehold land which the applicant owns. This parcel was transferred by the State of New South Wales to the applicant, on or about 31 March 2003, ... | non-claimant application declaration sought that no native title exists in subject land orders accordingly. native title |
In that judgment, her Honour dismissed an application to review a decision of the Refugee Review Tribunal rejecting the appellant's claim to a protection visa. 2 The basis upon which the Federal Magistrate dismissed the application to review was the failure of the appellant to appear on the day of the hearing. Her Hono... | purported appeal from judgment of federal magistrate dismissing application by reason of failure to appear objection taken to competency federal magistrate's judgment interlocutory appellant failed to appear at federal court hearing appeal dismissed as incompetent migration |
There was an acknowledged breach of s 424A of the Migration Act 1958 (Cth) by the Refugee Review Tribunal in a proceeding which led to the affirmation by that Tribunal of a decision by a delegate of the Minister not to grant protection visas to the appellants. The learned Federal Magistrate was satisfied that at least ... | acknowledged breach of s 424a other reasons for tribunal decision not independent appeal allowed migration law |
There are in fact two proceedings --- one commenced on 3 October 2008 (VID 830 of 2008) and the other on 14 August 2009 (VID 604 of 2009). In each proceeding, the Applicant complained of discrimination in the provision of educational services by the Respondent, the State of Victoria, pursuant to the DDA. Trial of the p... | discrimination disability child with alleged disabilities settlement of claim proper orders to make on approval of terms of settlement human rights |
In my opinion, the application for leave must be refused. The Court will normally entertain an application for amendment of a pleading if the amendment is in proper terms. However the Court will not entertain such an application if the amendment is obviously futile or untenable or would cause substantial injustice whic... | application for leave to file and serve revised cross-claim whether revised cross-claim properly pleaded whether claims obviously futile or untenable consideration of irregularities as to form cross claimant alleged jurisdictional errors by registrar where claims brought under administrative decisions (judicial review)... |
On 8 November 1994 he arrived in Australia travelling on an Indian passport and using an Australian Business Visa which authorised him to remain in the country for up to three months. 2 On 25 September 1997 he applied for a Protection Visa (866). On 2 October 1997 the Minister's delegate refused that application. 3 On ... | jurisdictional error failure by the refugee review tribunal to address whether state protection available in parts of india to which the appellant might relocate where discrimination was not as prevalent as it was in the maharashtra, a state in which a member of the sindhi community of low caste had been exposed to ser... |
An unresolved question raised at those case management conferences related to the joinder of the Western Australian Fishing Industry Council (Inc) (WAFIC) as a party. In addition, the representative body for the two regions proposed orders generally providing a mechanism for the removal of inactive respondents in appli... | native title determination application parties interest industry association insufficiency of direct interest based on members' interests participation of industry association in statutory committees whether sufficient interest interest insufficient joinder refused association able to act as agent if so requested by pa... |
On 11 November 2008, that Court dismissed an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The appellant is a male child who was born on 3 June 2004. He was born in Australia and, by reason of the fact that his parents are Albanian nationals, his nationality is Albanian.... | appeal from orders made by federal magistrate dismissing appellant's application for review of decision of minister's delegate refusing appellant protection visa decision of minister's delegate affirmed by refugee review tribunal where appellant born in australia and appellant's parents born in albania where tribunal d... |
The Notice of Motion was supported by an Affidavit filed 13 February 2006 sworn by Mr Richard Mark Hamwood, a solicitor employed by the solicitors for the Respondent ('Mr Hamwood's affidavit'). 2 Through its solicitors, the Respondent had previously requested particulars of the Statement of Claim by letter dated 14 Nov... | requests for further and better particulars function of particulars comparison with interrogatories 'vexatious and oppressive' whether requests for further and better particulars amount to requests for evidence by which material facts are to be proved practice and procedure |
3 Order 78 r 12 of the Federal Court Rules provides an application for review must be filed within 42 days of the notification of the Registrar's decision. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intend... | court's discretionary power to dismiss an application on its own motion if the application has not been amended since earlier failure of registration test and no evidence that likely to be amended in a way that would lead to a different outcome no other reason why the application should not be dismissed native title |
On 20 February 2007, the Minister decided to cancel the applicant's visa. The applicant held a transitional (permanent) visa Class BF granted to him by operation of law on 1 September 1994 under the Migration Reform (Transitional Provisions) Regulations , and the Minister made the decision to cancel the applicant's vis... | application for constitutional writs where applicant's visa cancelled under s 501(2) migration act 1958 (cth) where ministerial direction no 21 made under s 499 migration act 1958 (cth) where decision to cancel visa made by minister personally and not by a delegate where applicant had no children where minister gave co... |
The applicants claim to have legal professional privilege in relation to documents produced by third parties in response to such notices. They claim the return of documents in respect of which legal professional privilege is asserted to exist. 2 The Court has conducted a final hearing on the basis of admissions made on... | where notices requiring production of documents issued to persons or entities other than holder of the privilege whether notices invalid whether requirement to give holder of privilege a reasonable opportunity to assert legal professional privilege. legal professional privilege |
(As will become apparent later in these reasons, although I am satisfied that Mr Pritchard, by specific and identified conduct as a director of Warrenmang, contravened ss 180 , 181 and 182 of the Corporations Act , I amended the form and content of the declarations sought by ASIC to ensure that the conduct the subject ... | breach of directors' duties relating to the holding and application of funds raised in anticipation of public listing of company where application monies not refunded to subscribers where application monies applied for personal benefit declarations of contravention under s 1317e of corporations act 2001 (cth) construct... |
The Court announced that it would publish its reasons for judgment this afternoon. The following reasons contain the Court's reasons for making those orders. The appellant has appealed from a judgment of a Federal Magistrate delivered on 24 November 2008 ( SZMFY v Minister for Immigration & Anor [2008] FMCA 1609) w... | protection visa appeal from the federal magistrates court whether the refugee review tribunal complied with the requirements of s 424aa of the migration act 1958 (cth) migration |
That Ian Delaney be joined as a party to the Native Title Determination Application --- QUD355/2006 Noonukul of Minjerrabah. 2. That the Native Title Determination Application --- QUD355/2006 Noonukul of Minjerrabah be struck out. 3. Such further or other orders as the Court considers fit. These claims were accepted fo... | strike-out application section 84c native title act 1993 (cth) non-compliance with section 61 native title act 1993 (cth) identification of claim group authorisation description of claim area application also brought pursuant to order 20 rule 2 federal court rules native title |
The Tribunal decided that it had no jurisdiction to hear Mr Pomare's application to it for a review of a decision of a delegate of the first respondent (Minister). 2 The appeal raises the question of whether the Tribunal was correct to decide that it lacked jurisdiction because the application to the Tribunal was lodge... | appeal from decision of administrative appeals tribunal tribunal had held it lacked jurisdiction because application to it had been made outside statutory time limit time limit in s 500(6b) of migration act 1958 (cth) of nine days after day on which person notified of decision "in accordance with subsection 501g(1)" s ... |
2 I found in favour of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 69 IPR 23 (the earlier judgment). Subsequently the Full Court upheld Cadbury's appeal on the ground that I had wrongly excluded evidence sought to be adduced by Cadbury from three expert wi... | use of colour purple in confectionery market further hearing on remitter from full court after opinion experts as to consumer behaviour wrongly excluded rule in browne v dunn trade practices evidence |
The obvious intention of the present motion is to add her daughter to be part of "the applicant", so that there are two persons constituting the applicant. In addition, Ms Karen McFadden, Research Director of Queensland South Native Title Services (QSNTS), has executed an affidavit in which she deposes to having carrie... | notice of motion seeking to replace applicant in proceedings whether applicant should be replaced whether entire relevant claim group has been included whether applicant was authorised to make original native title application where section 66b of the native title act applies where determination of "proper" claimant gr... |
His Honour dismissed, with costs, an application to review a decision of the Refugee Review Tribunal ("the Tribunal") signed on 25 October 2006 and given on 14 November 2006. 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 20 October 2004. On 3 December 2004 he applied for a p... | appeal from judgment of federal magistrate dismissing appeal from refugee review tribunal no appealable error appeal dismissed with costs migration law |
Counsel for Ms Antipova argued that a great number of aspects of the manner in which the Tribunal conducted the proceeding, and reasoned its decision, gave rise to jurisdictional error on its part. The issues include denial of procedural fairness. Most significantly, it was suggested that the Tribunal denied Ms Antipov... | visa spouse visa whether migration review tribunal complied with requirement to invite applicant to give evidence and present arguments whether denial of procedural fairness imposition of time limit on hearing after hearing had begun and without prior warning frequent interruptions of applicant's answers to questions a... |
2 In the course of its investigation, ASIC gathered information primarily through the exercise of its compulsory powers under the ASIC Act . It conducted examinations of employees and former employees of AWB and AWBI pursuant to s 19 of the ASIC Act and, in addition, obtained signed witness statements voluntarily from ... | whether australian securities and investment commission act 2001 (cth) (asic act) abrogates legal professional privilege where asic decides pursuant to s 127(4) of the asic act to share with another agency information gathered in the course of an asic investigation from persons who may have inadvertently or voluntarily... |
The first is whether the Refugee Review Tribunal ('the Tribunal') exercised its statutory function properly, by dealing with all aspects of the applicant's case. The second is whether the Tribunal erred in law, in a way that affected the exercise of its statutory function, in failing to understand correctly the meaning... | visa protection visa whether application for constitutional relief out of time whether high court rules apply to remitted applications whether court's jurisdiction invoked afresh absence of time limits applying to decisions affected by jurisdictional error whether jurisdictional error by tribunal whether tribunal dealt... |
The bid was to acquire 100 percent of the fully paid ordinary shares in the capital of CMG Gold Limited (CMG) in consideration for 4.25 fully paid ordinary shares in Venturex per share in CMG (takeover bid). Offerees were informed on p 4 of the offer that the issued shares would be listed on the Australian Stock Exchan... | whether general prohibition of commencement of litigation before the end of the takeover period precludes the seeking of remedial relief during the takeover period pursuant to s 1325a(2) of the corporations act 2001 (cth) ca whether a general provision gives way to a specific provision what were the purposes of the res... |
He having retired, a question arose as to his entitlement for payment in lieu of long service leave under the Trustee Industry Award 1999 . 2 The Award provides in cl 18.1.1 for a "general entitlement" to thirteen weeks of long service leave "on completing" fifteen years of continuous service and seven weeks of such le... | interpretation of award whether state legislation or previous award relevant to interpretation of award long service leave pro rata payment in lieu on retirement industrial law |
See Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101. 2 I made the orders sought save for the order requiring attendance for oral examination. I did not make that order because I was informed that an oral examination had taken place. I reserved the right of the receiver to apply for an order... | costs costs associated with receiver's notice of motion where application necessary but lengthened by respondent's opposition and failure to comply with earlier orders written submissions on costs orders respondent ordered to pay 50 per cent of the receiver's costs practice and procedure |
It was produced by the Warner Bros Group ("Warner Bros") and the respondent companies are related to that corporation. 3 The applicants are considering whether to commence proceedings against the respondents for recovery of moneys, damages and other relief on the basis that they are entitled to receive payments in resp... | preliminary discovery extensive documentation produced by respondents whether information produced sufficient to enable a decision as to commencement of proceedings preliminary reports by consultants to applicants whether reasonable cause to believe applicant may have cause of action in the court practice & procedu... |
2 On 5, 6 and 7 March 2007 the Tribunal heard two applications by the applicant, George Jovanovski, for review of decisions made by the respondent, Telstra Corporation Limited (Telstra), pursuant to the Act, together. Accordingly, since 1 September 2005 and as at the present date, Telstra is not liable to pay compensat... | appeal from decision of administrative appeals tribunal whether tribunal erred in determining not to apply s 7(1) of the safety, rehabilitation and compensation act 1988 (cth) whether tribunal erred in finding no evidence to establish presumption pursuant to s 7(1) administrative law |
She applied to the Australian Embassy in Phnom Penh for a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 4 May 2004. She was sponsored by Mr Asna Yi, an Australian citizen. The application was accompanied by a statutory declaration from Mr Yi, who declared that he married the ... | whether s 347(1) and s 348(1) of the migration act 1958 (cth) and reg 4.10(1)(a) of the migration regulations 1994 (cth) infringed the implied constitutional freedom of communication in respect of government and political matters whether constitutional rights may be implied by reference to the concepts of representativ... |
In order to finance the project, Meadow Springs raised $4.85 million in capital by the issue of shares, and borrowed in the vicinity of $7.47 million. It granted security over the project land and its assets and undertaking to secure the repayment of the loans. Before undertaking the project, Meadow Springs obtained an... | litigation funding agreement failure by liquidator to obtain approval to enter litigation funding agreement under s 477(2b) of the corporations act 2001 (cth) whether the court should approve entry into litigation funding agreement retrospectively whether obligations under litigation funding agreement reasonably incurr... |
The decision was given in August 2008. The Tribunal set aside the decision of the Inspector-General to include ten elevenths of the net income of M. K. McGushin Pty Ltd in its assessment of the assessable contribution of the respondent (Mr McGushin) pursuant to s 139W(1) of the Bankruptcy Act 1966 (Cth) (BA) for the Co... | appeal by inspector-general in bankruptcy from decision of tribunal surgeon employed by company tribunal found net income of company was distinct from income paid to respondent held net income of company not income 'derived by the bankrupt' for the purposes of s 139w of the bankruptcy act 1966 (ba) whether tribunal cor... |
The Federal Magistrate's orders were interlocutory (rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth)). The applicant therefore requires leave to appeal to this Court (ss 24(1)(d) and 24 (1A) of the Federal Court of Australia Act 1976 (Cth)). The first respondent opposes the application on the basis that ... | application for leave to appeal tribunal decision considered and special leave refused further application for review new argument based on s 441g of the migration act 1958 (cth) federal magistrate held no jurisdiction anshun estoppel no special circumstances notification of tribunal decision authorised recipient serve... |
She obtained a passport which was issued in Liaoning on 11 August 2005. On 4 April 2006 she secured a temporary business visa. On 22 May 2006 she departed the People's Republic of China and entered Australia on 23 May 2006, travelling under the passport issued in her name and utilising the visa which she obtained on 4 ... | jurisdictional error tribunal member failing to keep an open mind until the applicant had an opportunity to respond to a s 424a invitation migration |
Each compound is a high intensity sweetener. The composition is for an improved high intensity sweetener. The patent has several claims. Claim 1 is for a sweetener composition comprising DMB-APM and APM and/or AceK in a ratio which gives a sweetness quality thereto closer to that of sucrose than any one of the compound... | patent invalid by reason of obviousness application to amend claims refused to exercise discretion to amend orders not entered power to vacate patents practice and procedure |
Mr Nathan's amended statement of claim in the proceeding below traversed many issues, however his Honour struck out all aspects of it other than those concerning ss 52 and 60 of the Act . In his reasons for judgment, Burchardt FM said at [10]: "I did ... make it clear that the trial would be restricted to the issues in... | appeal from decision of a federal magistrate misleading and deceptive conduct harassment and coercion whether appellant denied natural justice whether federal magistrate failed to give proper effect to ss 52 and 60 of the trade practices act 1974 (cth) held: appeal dismissed no error of law trade practices |
On 14 November 2008, that Court made an order that the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal") be dismissed. The appellant is a national of Egypt. He arrived in Australia on a student visa on 10 May 2005, having left Cairo on 9 May 2005. On 23 June 2005,... | appeal from orders made by federal magistrate dismissing appellant's application for review of decision of minister's delegate refusing appellant protection visa decision of minister's delegate affirmed by refugee review tribunal where appellant claimed fear of persecution for convention reason because he was member of... |
In substance, however, he attacks a decision made by the respondent (Minister) on 22 June 2006 cancelling his visa that entitled him to be in Australia. There are three issues in the proceeding: first, whether it is competent; second, if so, whether the cancellation decision is infected by jurisdictional error; and thi... | minister's cancellation of visa under s 501(2) of migration act 1958 (cth) on "character test" ground person had substantial criminal record challenge made to minister's exercise of discretion on ground of breach of natural justice alleged that without advance notice to visa holder of her intention not to do so, minist... |
As it transpires all of the claims of privilege were resolved between the parties without the necessity for the Court's intervention. 4 Once those issues were resolved, the only substantive matter which remained related to documents and other materials which had been seized and which were said to fall outside the scope... | search warrants judicial review of issue of construction of warrants whether a broad approach should be taken toward the requirement that a warrant contain a sufficient indication of the offence by reference to which it authorises seizure of particular things what matters a warrant should disclose whether a search warr... |
He claims to have produced the work in 1987 for use on shirts in order to promote a restaurant called "The Hog's Breath Saloon" in Florida. 2 In proceedings commenced in this Court on 24 October 2006 Mr Lamb sought declarations that his copyright had been infringed by the respondents. He sought injunctive relief and da... | interrogatories pleadings whether interrogatories should be permitted prior to filing of defence no point of principle practice and procedure |
2 These notices of motion were heard on 3 February 2006 and orders were made that the sole director/shareholder of the first applicant, Mr Alan Duncan furnish various undertakings to the Court. The notices of motions were otherwise dismissed and the first applicant was ordered to pay the costs of the 'first and second ... | outstanding costs costs |
Her application was refused by a delegate of the respondent and the refusal was affirmed by the Refugee Review Tribunal ('the RRT'). The appellant then applied unsuccessfully to the Federal Magistrates Court ('the FMC') to review the decision of the RRT. She has now appealed to the Court against the dismissal by the FM... | appeal attempt to re-agitate factual findings by the tribunal whether jurisdictional error migration |
Mr James Sutton was the manager and owner of Finlay Engineering. Mr Adam Sutton was a director and the secretary of the company. The company had nine employees whose employment was regulated by the Metal, Engineering and Associated Industries Award 1998 and by successive certified agreements. 2 On 5 April 2006 Mr James... | conduct of employer where employees told if they signed australian workplace agreement there would be no change to their terms and conditions of employment where australian workplace agreements reduced the quantum of redundancy payments to which the employees were entitled under certified agreement where multiple breac... |
Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1) , the 19... | application for a protection visa appellant did not appear migration |
Reliance is placed on all aspects of the rule so that what is in issue is whether the application discloses no reasonable cause of action; is frivolous or vexatious; or is an abuse of the process of the Court. In the event that any of those requirements are satisfied, the Court has a discretion to stay or dismiss the a... | appeal whether assessment excessive whether applicant can adopt facts stated by respondent without production of evidence and without respondent's concurrence effect of adoption to confine appeal to issues of compliance with statutory preconditions applicant not discharging burden of proof respondent entitled to grant ... |
The application for an order transferring the proceedings to the Supreme Court of Queensland is made pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The application for an order transferring the proceedings to the Queensland District Registry of this Court is made pursuant to s 48 of th... | application by one party for an order that the proceedings be transferred to the supreme court of queensland or, alternatively, to the queensland district registry of the federal court of australia relevant principles and considerations discussed proceedings transferred to the queensland district registry of the federa... |
They claimed entitlement to protection visas on the basis of a well-founded fear of persecution on that account. Because of the history of this matter, the Refugee Review Tribunal (the Tribunal) came to consider its decision in 1995 and so was bound by the Migration Act as it then stood. The first respondent, the Minis... | failure of decision-maker to give appellants the opportunity to comment on change of circumstances indicated by country information obtained by tribunal between hearing and decision pre introduction of s 424a of migration act 1958 (cth) appeal allowed migration law |
On 9 January 2007, the Refugee Review Tribunal ('the Tribunal'), constituted by Tribunal Member Robert Wilson, handed down its decision of 21 December 2006, affirming the decision of the Minister's Delegate not to grant the appellant a Protection (Class XA) visa. 4 In SZBYR v Minister for Immigration and Citizenship (2... | alleged jurisdictional error in respect of compliance with s 424a(1)(b) of the migration act 1958 (cth) scope of requirement migration |
2 During the course of the hearing there was a potential issue of statutory construction raised as to whether, under the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), section 63 operated, upon the filing of an appeal against the severity of his sentences, to stay the automatic disqualification provided by sec... | application for leave to manage a corporation under section 206g of the corporations act 2001 (cth) where the australian securities and investments commission intervened in the proceeding where the australian securities and investments commission did not object to the granting of leave but sought the imposition of appr... |
The case against the party posting the publications is straightforward. The case against the website "host" is novel. He is the Managing Director of the Housing Industry Association Limited (the HIA), a peak representative body of residential builders in Australia. 3 The first respondent, The Builders Collective of Aus... | where messages posted on to an internet discussion forum contained material causing offence and distress to the applicant because of his jewish race and ethnicity the party posting the offensive material did so in breach of pt ii of the racial discrimination act 1975 (cth) whether organisation which controls and manage... |
That Application seeks both leave to appeal and " an order that compliance with Order 52, subrule 5(2) be dispensed with ". Leave to appeal is required because the Federal Magistrate dismissed the application before that Court pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). In addition, ... | interlocutory decision of federal magistrate application filed outside 21 day period application 7 days out of time application for extension of time and for leave to appeal no explanation provided for non-compliance application for extension of time refused factors relevant to exercise of discretion to do justice betw... |
In early 2002 he received advice that his application to migrate to Australia in the Business Owner visa subclass 127 had been approved and that the visa approval covered his wife and their three children. Mr Koosasi and his family subsequently entered Australia in reliance on the visas granted pursuant to this approva... | cancellation of business visa pursuant to s 134(1) of the act finding by tribunal that the enterprise was not an 'eligible business' within the meaning of the act whether tribunal asked itself the right questions whether tribunal found the enterprise was a 'business' whether tribunal looked to state of affairs of the e... |
In opening the appellant's case her counsel frankly conceded that the appellant was 'not a model employee' throughout the whole of her 23 years as an employee of the Council. She was counselled on numerous occasions and it is said that on each occasion she was counselled she improved her performance, but with the passa... | discrimination imputed disability appropriate comparator reasonable imposition of requirement on an employee to attend a medical examination to determine fitness to perform duties what constitutes subjecting an employee to 'any other detriment' discrimination law |
2 These reasons for decision are directed to the final orders that I have determined to make, having heard submissions from the applicant and the respondents yesterday. The issues that separated the parties narrowed considerably during the course of yesterday's hearing. The remaining differences relate to the form of d... | declarations that documents protected by legal professional privilege form of declarations whether appropriate to grant declaration that certain documents are privileged and others not whether necessary to distinguish between waived documents and documents to which privilege never attached discretion to award where eac... |
The application before the Court has a background which involves these considerations. On 12 February 2009, Logan J made orders that an application for the adjournment of an application for the winding up of a company called Neo Rock Pty Ltd be refused and that the company be wound up in insolvency pursuant to the prov... | consideration of an application for leave pursuant to s 471a of the corporations act 2001 (cth) for leave to act as a director for the purpose of making an application for leave to appeal from an order for the winding up of a company of which the applicant was a director consideration of an application for leave to app... |
The applicable principles for determining whether the relief sought should be granted, are not in issue. They have recently been restated by a Full Court in The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176 and, in particular, at [14] - [19]. There is no significant dispute about many o... | application for interim relief where applicant a union delegate dismissed by respondent for conduct during strike whether serious case to be tried as to whether applicant was terminated for being a union delegate or for engaging in protected industrial action balance of convenience and relevance of income derived from ... |
In that judgment, her Honour dismissed an application to review a decision of the Refugee Review Tribunal rejecting the appellant's claim to a protection visa. 2 The basis upon which the Federal Magistrate dismissed the application to review was the failure of the appellant to appear on the day of the hearing. Her Hono... | purported appeal from judgment of federal magistrate dismissing application by reason of failure to appear objection taken to competency federal magistrate's judgment interlocutory appellant failed to appear at federal court hearing appeal dismissed as incompetent migration |
1 '). Since the facts and legislation are set out in that decision, the present decision should be read in conjunction with Tran No. 1 . In Tran No. 1 the Court found that s 261A of the Migration Act 1958 (Cth) ('the Migration Act ') operated to effect an automatic forfeiture of the ship Hao Kiet BL91693TS ('the ship')... | automatic forfeiture of fishing vessel engaged in transportation of unauthorised persons to australia meaning of word 'contravention' whether contravention of s 261a of migration act 1958 (cth) requires conviction of offence whether contravention of s 261a limited to contravention of provisions within migration act cre... |
Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-... | s 43 federal court of australia act 1976 (cth) discretion to award costs circumstances justifying departure from the general rule practice and procedure |
The respondents are the State of Queensland, the Cairns City Council, the Eacham Shire Council and Ergon Energy Corporation Limited. 2 The claim area comprises approximately 13 287 hectares of land and waters within various reserves, environmental parks and national parks around Atherton, Mareeba and Cairns in Far Nort... | consent determination whether order under s 87 native title act appropriate native title |
A popular type of mobile crane is that known as a "pick and carry" crane. These are designed to operate without "outriggers". They present the advantage of permitting the ready movement of a crane from a lifting task at one site to one at another site without the need on each occasion to deploy and then retract stabili... | interlocutory injunction principles to be applied practice and procedure |
The application was founded on an alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) ('the Act') and the applicant claimed damages against the respondents under s 82 of the Act and other orders under s 87 of the Act. 3 In general terms, the applicant alleged that the first respondent was one of a numbe... | review of taxation by judge whether counsel's fees properly incurred whether an amount allowable for care and attention costs |
The circumstances in which the receiver came to be appointed are explained in my judgment in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. Mr Nicol entered on his task promptly. He has discovered various funds which are additional to those which are identified in Schedule A of the order ... | notice of motion on behalf of the receiver application seeking further funds to be included in the receivership, an extension of time of the receivership and for the respondent to attend for examination and file an affidavit of documents whether respondent should be excused in limine from swearing affidavit or attendin... |
Each notice primarily sought documents and information for an alleged price fixing agreement, arrangement, or understanding in relation to international air cargo services, purportedly contravening s 45 of the Act. Relief is sought under a variety of provisions, including s 16 of the Administrative Decisions (Judicial ... | investigative function validity of s 155 notices 'matter' under investigation relevance of information sought burdensome unreasonableness of decision to issue s 155 notice market definition market in australia trade practices |
The Tribunal had affirmed an earlier decision of a delegate of the Minister to refuse to grant Protection (Class XA) visas to the appellants under s 65 Migration Act 1958 (Cth) ("the Act"). They arrived in Australia on 26 March 2002 and applied to the Department of Immigration and Multicultural Affairs for Protection (... | migration act 1958 (cth) s 65 protection (class xa) visa application appeal from decision of federal magistrate whether jurisdictional error in decision of refugee review tribunal migration |
2 In her application for a Protection (Class XA) visa, which was lodged on 3 December 2004, it was indicated that her relevant language was Mandarin. Her application for a Protection (Class XA) visa was refused by a delegate of the Minister on 8 February 2005. 4 The appellant applied to the Refugee Review Tribunal ('th... | procedural fairness whether a tribunal hearing should have proceeded where a real doubt existed as to the ability of the applicant to comprehend what was being said migration |
On 23 March 2007 the applicants Robert Hine and CPR Property Pty Limited, filed an Application seeking relief against 'NSW Department of Housing' as the respondent. That application was accompanied by a Statement of Claim also filed on 23 March 2007. 3 CPR Property Pty Ltd was a company with which Mr Hine was concerned... | jurisdiction federal claims hopeless but not colourable, in the sense that they were made for the improper purpose of fabricating jurisdiction once federal jurisdiction attracted, it remains, even though federal matters abandoned courts |
2 The appellant appeals to this Court from the Federal Magistrate's decision and seeks leave to rely on a ground of appeal not raised below, which is opposed by the first respondent. In order to understand and evaluate the grounds of appeal raised before me, including the application for leave to argue a matter not rai... | protection visa tribunal not satisfied that appellant experienced persecution no jurisdictional error in failure to consider absence of state protection country information that responded to questions about the class of "several female applicants" is information within s 424a(3)(a) appeal dismissed migration |
In that decision the Tribunal affirmed the decision of a delegate of the first respondent refusing to grant to the applicant a subclass 853 Remaining Relative visa. 2 The Tribunal is joined as second respondent on the basis it will abide the decision of the Court. References in these reasons to 'the respondent' are the... | remaining relative visa tribunal affirmed delegate's decision to refuse application for review tribunal accepted effect of full court decision was to negate previous ground of review tribunal found applicant had not satisfied it he had not had contact with his overseas near relatives within a reasonable period no failu... |
The applicant, Geoffrey Harper, owns a Piper Navajo Chieftain, registration number VH-ONC (aircraft ONC). Mr Harper holds a pilot's licence but his principal business is running a coach company. After purchase in February 2005 Mr Harper brought aircraft ONC to Bankstown airport. The third respondent, TS Air Charter Pty... | express representation whether agreement to repair, maintain and service aircraft within certain timeframe whether representation made capacity in which representation made whether reliance on the representation implied representation whether representation to repair, maintain and service aircraft in compliance with th... |
In January 2006, the University and Professor McAleer were bound by an agreement certified under the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act ). The certified agreement is referred to as "The University of Western Australia Academic Staff Agreement 2004" (the 2004 Agreement). Schedule D of the 20... | disciplinary proceedings brought under a disciplinary procedure in a certified agreement application to stay disciplinary proceedings whether sufficient public element whether federal court has power to stay the disciplinary proceedings summary judgment application s 31a of federal court of australia act 1976 (cth) pro... |
He claims that he was persecuted in Egypt because of his religion, because he was a member of a particular social group (namely Christian lawyers) and because he was a member of the liberal political opposition. His application for a protection visa was rejected by a delegate of the respondent and by the Refugee Review... | appeal relocation principle whether tribunal applied the correct test in finding that the applicant did not have a well-founded fear of persecution for a convention reason relocation whether tribunal considered the possibility of future persecution ambit of the tribunal's obligations to consider future persecution upon... |
The matter has had an exceptional history considering that the applicant arrived on 1 September 1990 and applied for refugee status on 19 September 1990. As from September 1994, the application was deemed to be an application for a protection visa. On 30 April 1997, a delegate of the Minister refused to grant a protect... | ministerial delegate refused application for protection visa decision affirmed by refugee review tribunal application for order nisi claim that refugee review tribunal failed to consider a distinct claim made by the applicant application dismissed. migration |
The section relevantly provides that an employer must not dismiss an employee for a prohibited reason or for reasons which include a prohibited reason. Despite these amendments, pursuant to reg 7.4.53 of the Workplace Relations Regulations 2006 (Cth) the application is to be determined under s 298U of the Act as if it ... | whether employer dismissed employees for a prohibited reason or for reasons which included a prohibited reason whether employer dismissed employees because of union membership operation of reverse onus in workplace relations act 1996 (cth) s 298v whether applicants bore onus to prove respondent knew applicants were uni... |
The applicant, Mr Stoyef, brings the application as a representative party. He and the group members are persons who were clients of the financial services business conducted by the respondent (Masu) between 2003 and late 2005 and who, in reliance on advice given by Masu, invested in one or more "Westpoint Products", a... | pleading managed investment scheme class action against financial services licensee which advised applicant and group members to invest in promissory notes without giving them a product disclosure statement (pds) as (allegedly) required by s 1012a(1) of corporations act 2001 (cth) financial collapse investors suffered ... |
The applicant, through no fault of his own, was not present on that occasion. He was unwell, suffering from the illness which is the subject matter of the appeal. 2 In any event, counsel for the Repatriation Commission, the respondent to the appeal, made an application for costs. Because the applicant was absent I thou... | application for costs discretion of the court whether costs should follow the event. costs |
The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellants. 2 The appellants are citizens of India who arrived in Australia on 25 January 2004. They entered on short stay visitor's visas. The appellants are respecti... | no point of principle migration |
There was one principal question raised for determination in the proceedings, being whether each of the railway services which were the subject of an application filed under s 44F(1) of the Trade Practices Act 1974 (Cth) ('the Act') and dated 11 June 2004 by Fortescue Metals Group Limited ('Fortescue') to the National ... | discretion to award discussion of general principles whether successful party not entitled to costs in respect of those issues or inquiries on which the party failed whether statutory body not entitled to costs in respect of evidence relating to distinct inquiry or issue on which it failed costs |
The appeal is principally concerned with the application of s 66-5(1) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the 'GST Act'). LeasePlan contends that the GST assessment is excessive because it was entitled to input tax credits under Div 11 of the GST Act, and more particularly because it acquir... | gst input tax credits the application of s 66-5(1) of the a new tax system (goods and services tax) act 1999 (cth) whether sale was 'a purpose' for which second-hand goods were acquired lease-back schemes. taxation |
Provident filed a proof of debt for the full value of Kelso's indebtedness to it without estimating the value of its security. A representative of Provident attended a meeting of creditors of Kelso on 21 September 2007 and voted on a number of resolutions. The representative voted on a show of hands or by voices, or or... | application for declaration that creditor had not surrendered its security creditor completed proof of debt form without estimating value of security creditor voted at meeting by show of hands or on the voices no poll taken no relevant conduct no question of inadvertence no surrender of security insolvency |
The time for compliance with Order 2 of Collier J of 7 September 2007 be varied until 4.00 pm on 26 September 2008. 2. The time for compliance with Order 4 be varied to a date to be fixed. 3. Order 7 of Collier J of 7 September 2007 be vacated. 4. Such further or other orders as the Court considers fit. The notice of m... | flawed native title claim applicant seeks further time to amend native title application native title |
The SSAT had set aside the decision of the Secretary, Department of Workplace Relations (the "applicant") and returned the matter for reconsideration in accordance with a direction that, for the purposes of calculating her entitlement to a Centrelink parenting payment, the income of the respondent did not include amoun... | social security appeal from the administrative appeals tribunal (aat) respondent required to repay tab till shortfalls from wages pursuant to employment contract whether money repaid constitutes income which should be declared to centrelink for the purposes of calculating parenting payment definition of income within t... |
On the same date, 8 July 2005, he appeared before the Court of Petty Sessions and was then granted bail pending the outcome of the extradition proceedings. The extradition hearing, pursuant to s 19 of that Act, was heard on Monday, 18 August 2008 in the Perth Magistrates Court before Magistrate Lane. Her Honour reserve... | bail application urgent hearing special circumstances appropriate test extradition |
For most of that time, that business has included the design, manufacture and supply of chairs moulded from plastic materials. Sebel's products are also sold overseas. It exports to over 70 countries worldwide. 2 Sebel's product range is extensive and varied. It produces seating and furniture for restaurants, cafes, st... | whether the promotion and supply of a one piece moulded plastic chair by a rival trader is likely to deceive potential purchasers into believing the rival trader's product was put out by or associated with the applicant or that the rival trader is itself associated with the applicant the competing products were suffici... |
2 By notices of motion filed on 13 February 2008, the respondents sought to have the applications dismissed pursuant to s 31A of the Federal Court Act. Mr Priestley challenges the constitutionality of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules made in furtherance of that section ('the consti... | whether s 79 of the judiciary act 1903 (cth) operates to make s 21(1) of the human rights act 2004 (act) applicable to proceedings in the federal court heard in the act concerning the federal court of australia act 1976 (cth) and the federal court rules the human rights act applies to the interpretation of territory la... |
The Tribunal affirmed a decision of the Social Security Appeals Tribunal (SSAT). On 28 March 2006, the SSAT had affirmed a decision made by an authorised review officer within the Department of the respondent (the Secretary) on 3 November 2005, that a "preclusion period" from 30 April 2005 to 15 February 2008 applied t... | time when "lump sum preclusion period" under s 1170 of the social security act 1991 (cth) begins whether the section requires that individual retain and have benefit of both periodic compensation payments and lump sum compensation payment whether lump sum preclusion period begins on the day following the last day of pe... |
In its application ASIC relies upon a presumption of insolvency flowing from the appointment of receivers and managers of Forestview under a floating charge and the receiver and manager's subsequent possession and control of Forestview's property for the purpose of enforcing that charge. For the reasons that follow I a... | winding up insolvency presumption of insolvency flowing from appointment of receivers under floating charge presumption of insolvency not displaced winding up order made liquidators also appointed as receivers of unit trust of which company is trustee corporations |
At that time, the SECV employed him as a meter reader/collector in Hamilton. Mr Urquhart remained a meter reader for many years although the identity of his employer changed. At all material times, Mr Urquhart was a member of the Australian Municipal, Administrative, Clerical and Services Union ("ASU"), an organisation... | award and certified agreements binding on licensed electricity distributor (powercor) powercor contracted out meter reading functions to other entities before contracting with the respondent whether respondent bound by award and certified agreements by operation of transmission of business provisions under the workplac... |
MEGA-LITIGATION AND ITS DISCONTENTS [1] 1.1 Introduction [1] 1.2 The Hearing [6] 1.3 Extent of the Documentation [11] 1.4 Costs [17] 1.5 Challenges [19] 1.6 Attempts to Refine the Issues [29] 1.7 Chronologies [42] 1.8 Preparing a Judgment [46] 1.9 Scope of the Judgment [51] 1.9.1 Unresolved Issues [51] 1.9.2 Length of ... | retail pay television provider (' foxtel ') refuses to take premium sports channels from a channel supplier (' c7 ') incorporating australian football league (' afl ') content a consortium, including foxtel, enters into a ' master agreement ' providing for bids to be made for the afl pay television rights and the natio... |
The appellant was a Pakistani citizen who hailed from the North West Frontier Province. 2 The appellant arrived in Australia in early September 2007 and was detained at the airport because of irregularities perceived with the manner in which he entered. He made an application for a protection visa later in September 20... | migration act 1958 (cth) s 424 (1) whether tribunal had regard to additional information requested by it and provided by appellant in making decision on review whether tribunal had duty to translate newspaper articles given to it by appellant in support of his claim articles given to tribunal to prove existence of fact... |
2 The appellants are husband and wife. The chronological history of the matter is important having regard to the complaints raised by the appellants. 3 The appellants are citizens of Sri Lanka. The first appellant entered Australia on 27 July 2004 and the second appellant on 4 December 2004. 4 On 11 August 2004 the fir... | appeal from decision of federal magistrate to refuse judicial review of refugee review tribunal (rrt) decision where two separate applications for protection visas by husband (first appellant) and wife (second appellant) grounds for protection were fear of persecution for political reasons and membership of a particula... |
I adjourned further consideration of the present motion to permit the parties to put on evidence and make submissions in relation to penalty. The applicant, Metcash, has filed further affidavit material. That affidavit outlines in some detail correspondence and other communications between Metcash and Mr Bunn which it ... | civil contempt principles governing imposition of penalty costs discretion to award indemnity costs in contempt proceedings whether immediate taxation appropriate in contempt proceedings contempt |
2 Australia Post determined that it was exempt from the operation of the FOI Act in relation to the list pursuant to s 7(2) of the FOI Act on the footing that the list is a document in respect of Australia Post's commercial activities. (2) Whether the Tribunal failed to discharge its review jurisdiction by failing to d... | consideration of whether the australia postal corporation is exempt from the operation of the freedom of information act 1982 (cth) by reason of the operation of s 7 of that act consideration of the construction to be given to the phrase 'documents received or brought into existence in the course of, or for the purpose... |
The Tribunal officer had refused a request to waive a filing fee in respect of an application for review before the Tribunal of a decision by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") to refuse a Residence Visa (Class BS) to the appellant and her two sons. The appellant a... | appeal from a decision of a federal magistrate reviewing a decision of the migration review tribunal application for a fee waiver before tribunal whether jurisdictional error whether severe financial hardship whether evidence of appellant's estranged defacto partner's financial situation a relevant consideration failur... |
223 ('the investigative referral') to the second respondent, in his capacity as the Director of Professional Services Review ('the Director'). 3 Pursuant to subs 89(1) of the Act, the Director conducted an investigation into the referred services. He did not dismiss the referral under s 91 of the Act as he was not sati... | health insurance professional services review statutory scheme for examination of conduct to ascertain whether inappropriate practice involved where committee considered services rendered or initiated by person where samples of services may be considered in accordance with determination or approved method whether commi... |
On 29 November 2006 he applied for a Protection (Class XA) Visa. 2 A delegate of the Minister refused the application and the now Appellant sought review by the Refugee Review Tribunal. That Tribunal affirmed the delegate's decision by its decision signed on 26 March 2007. 3 The Federal Magistrates Court has, in turn, ... | leave to raise new ground of appeal refused relocation within country no failure to consider claims no denial of procedural fairness country information not " about " the appellant pro forma grounds of appeal migration |
The plaintiffs are shareholders in Silverglow. Between them they hold 40% of Silverglow's shares. Norman Deng is a director of Silverglow and represents the plaintiffs. Godini Accommodation Services Pty Ltd (GAS) holds 30% of Silverglow's shares. Richard Ah Boey Tay is a director of Silverglow and represents GAS. 77 th... | application for winding up discontinued defendant agreed to voluntary winding up costs order sought by plaintiff commercial considerations relevant conduct not unreasonable conduct did not constitute surrendering costs application dismissed costs |
On 4 May 1989 he appears to have been granted a permanent entry permit under the then provisions of the Migration Act 1958 (Cth). There was a reference in some material before the Administrative Appeals Tribunal to another potential source of visa held by him. However, it is common ground that Mr Toro Martinez held a t... | administrative law retrospective legislation deeming provision intended to reverse effect of judicial decision that statutory power to cancel a visa could not be exercised in respect of particular class of visa deeming provision validated decisions by the minister and a delegate of the minister deeming provision silent... |
The first is ACD 21 of 2007, which is convenient to see as an appeal against a judgment of the Federal Magistrates Court given by Federal Magistrate Mowbray in proceedings in that Court numbered CAG 17 of 2007 on 21 May 2007. His Honour dismissed an application by the appellant, Mr Fitzpatrick, to have a bankruptcy not... | control of persons and property of bankrupt stay of actions already commenced until trustee elects to prosecute or discontinue discharge of bankrupt and annulment of sequestration order annulment of bankruptcy where bankrupt is able to pay outstanding debt but has not yet done so bankruptcy bankruptcy |
Section 131B(2) provides that an appeal lies from a decision of a court of a State or Territory to this Court. In this case, the relevant court was the Newcastle Local Court. According to s 25(5) of the Federal Court of Australia Act 1976 (Cth), that appeal may be exercised by a single Judge of this Court. 2 The decisi... | appeal from sentence imposed by magistrate breaches of copyright act 1968 (cth) quantum of penalty. copyright |
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