PRACTICE AND PROCEDURE – vexatious litigant – application for leave by person subject to a vexatious proceedings order to commence a new proceeding – applicant required to file an affidavit which identifies all other proceedings the applicant has instituted in any Australian court or tribunal – whether substantial compliance established – Court may receive as evidence any record of evidence given in another proceeding involving the applicant – failure to substantially comply with s 37AR(3) of the Federal Court of Australia Act 1976 (Cth) – application dismissed 

MIGRATION – judicial review of decision to affirm decision of Minister to refuse grant of a protection visa – application of objective element of “well-founded fear" test – speculation as to future factual matters different from speculation as to whether there is a "real chance" that visa applicant will be harmed upon return to home area

CORPORATIONS – insolvency – receivers’ application for directions as to distribution of proceeds of realisation – where liquidators also appointed – where s 561 of the Corporations Act 2001 (Cth) applies – where s 561 permits payment to certain priority creditors from property the subject of a circulating security interest – whether payment is to be made by receivers or liquidators – whether receivers justified in making payments – where s 433 of the Corporations Act 2001 (Cth) does not apply
CORPORATIONS – whether s 561 excludes claim for equitable salvage lien over property the subject of a circulating security interest

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0379

EVIDENCE – admissibility of documents produced by a third party in answer to a subpoena – whether representation was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian proceeding – whether authenticity a ground of admissibility

MIGRATION – appeal from the Federal Circuit Court of Australia which dismissed a judicial review application relating to a decision of the Immigration Assessment Authority not to grant a protection visa – whether Authority was required to consider unarticulated claim – test for whether an unarticulated claim must be considered by decision-maker – whether test differs when applied in context of Pt 7AA review – whether test is more stringent than ‘fairly arises on the material’ – appeal dismissed

CORPORATIONS – application for winding up of company pursuant to s 461(1)(a) of the Corporations Act 2001 (Cth) – shareholder of company had by deed assigned shares to plaintiff – Court previously ordered that company’s register of members be corrected to record plaintiff as owner of the shares pursuant to s 175 of the Corporations Act – no copy of the register of members was in evidence and a company search did not indicate a change of ownership of shares – application amended at hearing to include alternative ground of winding up pursuant to s 461(1)(k) – Taylor (trustee), in the matter of Kwok v Goldana Investments Pty Limited (receivers and managers appointed) (No 2) [2015] FCA 947; 236 FCR 298 considered – amended application granted

MIGRATION – judicial review of decision to affirm decision of Minister to refuse grant of a protection visa – application of objective element of “well-founded fear" test – relevance of generalised, indiscriminate violence to whether there is a "real chance" that visa applicant will suffer harm upon return to home area – relevance of prior Tribunal decisions relating to similar factual circumstances to determination of Tribunal

MIGRATION – appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of the respondent’s decision not to waive visa condition 8503 (‘no further stay condition’) – where the appellant made two unsuccessful requests to the respondent in March 2015 for a waiver of visa condition 8503 on the basis that his circumstances had changed by marrying an Australian citizen, assuming responsibility as her carer and becoming a father figure for her children – where the court below made orders by consent on 27 April 2016 quashing the first waiver request and requiring it to be reconsidered according to law – where the appellant subsequently officially separated from his wife on 29 May 2016 – where on reconsideration the respondent rejected the waiver request by decision dated 17 July 2016 but incorrectly identified the decision being reconsidered as the second request rather than the first request – whether any jurisdictional error in the respondent’s incorrect identification of the decision being reconsidered – no material error – appeal dismissed

MIGRATION – appeal from orders of the Federal Circuit Court dismissing application for judicial review – English language test not passed within specified time; application of judicial review could not succeed; no error by primary judge – held: appeal dismissed

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0375

MIGRATION – appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where “bogus" document given in relation to visa application – where primary judge held that s 359A of the Migration Act 1958 (Cth) did not arise – where primary judge held that delegate’s decision to refuse visa had not been vitiated by fraudulent conduct of third parties – whether jurisdictional error – held: no jurisdictional error – appeal dismissed

MIGRATION – application for leave to appeal – application to show cause dismissed by the Federal Circuit Court of Australia – protection visa – medical practitioner involved in protest against government – Tribunal not satisfied as to claim of risk of serious or significant harm – where proposed grounds have no reasonable prospect of success

PRIVILEGE – legal professional privilege – implied waiver – whether alleged unrestricted communications to a third party are inconsistent with the maintenance of privilege – relevance of fairness in determining whether privilege has been waived

CORPORATIONS – application by ASIC to wind up solvent companies on the just and equitable ground – s 461(1)(k) of the Corporations Act 2001 (Cth) – where company is solvent – where private proceeding also on foot – where pattern of unlawful and misleading behaviour – application to wind up managed investment scheme pursuant to s 601EE(2) of the Corporations Act – applications granted

PRACTICE AND PROCEDURE -where interlocutory orders made by the Court – where affidavit evidence filed on behalf of the applicant was later identified by applicant’s solicitors as untruthful -whether the untruthful affidavit evidence should be removed from the Court file – whether non-publication orders should be continued – whether the papers should be referred to the Commonwealth Attorney-General to investigate and determine whether criminal proceedings should be brought in respect of the giving of false testimony

COPYRIGHT – consideration of whether copyright continues to subsist in an artistic work described as the “Membership Card image” authored by a United States citizen in the United States of America in 1954
COPYRIGHT – consideration of whether the 1954 work authored by a man by the name of “Sundown” is an anonymous work or a pseudonymous work – consideration of whether the relevant corporation in the United States of America is the owner of the copyright subsisting in the work in suit – consideration of the evidence and statutory provisions going to the question of whether that corporation is the owner of the copyright work in suit having regard to the application of the domestic copyright law of Australia
COPYRIGHT – consideration of whether the applicant is an exclusive licensee of the contended grantor of the exclusive licence having regard to the integers of the term “exclusive licensee” in s 10(1) of the Copyright Act 1968 (Cth)
COPYRIGHT – consideration of whether a work described as the “Fuki current Death Head design” is a derivative work and whether copyright subsists in it independently of the “Membership Card image”
COPYRIGHT – consideration of whether the first respondent has exercised any one of the relevant exclusive rights of the copyright owner on the assumption that ownership of the copyright as contended is made out
TRADE MARKS – consideration of whether the applicant is an authorised user of the trade marks in suit having regard to the integers of s 8 of the Trade Marks Act 1995 (Cth)
TRADE MARKS – consideration of whether the first respondent has infringed the registered trade marks in suit having regard to the elements of s 120(1) and s 120(2) of the Trade Marks Act – consideration of the question of damages and exemplary damages
TRADE MARKS – consideration of a cross claim by the first respondent for an order directing the Registrar of Trade Marks to remove the registered trade marks of Hells Angels Motorcycle Corporation of the United States from the Register
INTELLECTUAL PROPERTY – consideration of whether the applicant has standing to bring the proceedings

CORPORATIONS – directors’ duties – Defendants were directors and/or officers of a mining company (Termite) operating a mine with a life of about five years – Termite conducted the mining and associated activities through contractors pursuant to contracts for terms closely corresponding to the estimated life of the mine – Defendants caused Termite to adopt and implement a distributions policy by which, subject to the retention of a reserve of $3 million, all the proceeds from the mining were distributed to the joint venturer shareholders – part way through the expected life of the mine, the iron ore price dropped and Termite went into voluntary administration and subsequently into liquidation – claim that several of the Defendants breached their common law duties to act with care, skill, diligence and good faith for the company as a whole – claim that the Defendants breached ss 180 and 181 of the Corporations Act 2001 (Cth) – claim that the reserve of $3 million was inadequate – claim that a reserve of at least $10 million was necessary for Termite to survive even a short term downturn in the iron ore price.
CORPORATIONS – claim for damages pursuant to s 1317H of the Corporations Act or at common law for the deficiency in Termite’s liquidation – in the alternative, claim that the distributions would not have been made and that Termite would have repaid its creditors and reduced a loan from its parent company – in the further alternative, claim for the aggregate of the distributions paid pursuant to the Distributions Policy.
Held: 1.A cash reserve of at least $10 million should have been retained – each of the Defendants, acting as either directors or de facto directors, breached their duties under ss 180 and 181 in respect of the adoption and implementation of the distributions policy and in failing to review and revise it during the period that distributions were made – three of the defendants breached their common law duties.
2.An additional $7 million would have been available in mid-2014 when the administration occurred if a $10 million cash reserve had been retained – damages of $7 million awarded.
CORPORATIONS – consideration of claim for damages and review of deficiency in the liquidation – liquidators have admitted proofs of debt – whether the amount for which a debt has been admitted to proof by the liquidators was a cap on the Defendants’ liability – assessment of creditors’ claims.

PRACTICE AND PROCEDURE – where applicant seeks judicial review after visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – objection to competency – decision made by the Department of Home Affairs, not the Minister – Federal Court of Australia lacks jurisdiction – application dismissed

PRACTICE AND PROCEDURE – discovery – whether discovery will facilitate just resolution of proceeding quickly, inexpensively and efficiently under r 20.11 of the Federal Court Rules 2011 – where objections to relevance – discovery allowed