Question:
<citphrase id="cp0.0">cited from="[2007] FCA 2054">copyright</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 2054">computer program</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 2054">content management system for internet web site</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 2054">individual files within such a system</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 2054">whether "set of statements or instructions"</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCA 2054">whether "used ... to bring about a certain result"</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCA 2054">whether source code on files a computer program as defined. copyright</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCA 2054">infringement</citphrase>
<citphrase id="cp0.8">cited from="[2007] FCA 2054">whether necessary to establish actual copying of work or copy of work</citphrase>
<citphrase id="cp0.9">cited from="[2007] FCA 2054">whether infringement constituted by copying progenitor or sibling of work. copyright</citphrase>
<citphrase id="cp0.10">cited from="[2007] FCA 2054">infringement</citphrase>
<citphrase id="cp0.11">cited from="[2007] FCA 2054">computer program</citphrase>
<citphrase id="cp0.12">cited from="[2007] FCA 2054">part only copied</citphrase>
<citphrase id="cp0.13">cited from="[2007] FCA 2054">whether part a substantial part</citphrase>
<citphrase id="cp0.14">cited from="[2007] FCA 2054">qualitative or quantitative approach to this issue</citphrase>
<citphrase id="cp0.15">cited from="[2007] FCA 2054">originality of part</citphrase>
<citphrase id="cp0.16">cited from="[2007] FCA 2054">relevant of failure to explain qualitative aspects of whole work. equity</citphrase>
<citphrase id="cp0.17">cited from="[2007] FCA 2054">obligation of confidence</citphrase>
<citphrase id="cp0.18">cited from="[2007] FCA 2054">information obtained during employment</citphrase>
<citphrase id="cp0.19">cited from="[2007] FCA 2054">information used after termination of employment</citphrase>
<citphrase id="cp0.20">cited from="[2007] FCA 2054">whether information had necessary quality of confidentiality</citphrase>
<citphrase id="cp0.21">cited from="[2007] FCA 2054">circumstances in which information was conveyed to employee. contract</citphrase>
<citphrase id="cp0.22">cited from="[2007] FCA 2054">contract of employment containing confidentiality terms</citphrase>
<citphrase id="cp0.23">cited from="[2007] FCA 2054">whether information acquired by employee was "confidential information" or "proprietary information". corporations</citphrase>
<citphrase id="cp0.24">cited from="[2007] FCA 2054">obligation of former employee as to use of information acquired during employment</citphrase>
<citphrase id="cp0.25">cited from="[2007] FCA 2054">whether such use "improper".</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCAFC 40">intellectual property</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCAFC 40">copyright</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCAFC 40">assessment of damages</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCAFC 40">election for compensatory damages</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCAFC 40">assessment of damages on the basis of a royalty inappropriate</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCAFC 40">whether loss of sales by the copyright owner could be inferred merely from the fact of sales of infringing product</citphrase>
<citphrase id="cp1.6">cited from="[2007] FCAFC 40">requirement for evidence of lost sales and value of such sales</citphrase>
<citphrase id="cp1.7">cited from="[2007] FCAFC 40">additional damages</citphrase>
<citphrase id="cp1.8">cited from="[2007] FCAFC 40">purpose of awarding additional damages</citphrase>
<citphrase id="cp1.9">cited from="[2007] FCAFC 40">assessment of additional damages</citphrase>
<citphrase id="cp2.0">cited from="[2006] FCA 755">practice and procedure</citphrase>
<citphrase id="cp2.1">cited from="[2006] FCA 755">costs</citphrase>
<citphrase id="cp2.2">cited from="[2006] FCA 755">circumstances under which indemnity costs will be ordered</citphrase>
<citphrase id="cp2.3">cited from="[2006] FCA 755">calderbank offers</citphrase>
<citphrase id="cp2.4">cited from="[2006] FCA 755">whether offer by respondents to accept substantial amount by way of costs if applicant discontinues proceeding constitutes a calderbank offer</citphrase>
<citphrase id="cp4.0">cited from="[1998] FCA 699">negligence</citphrase>
<citphrase id="cp4.1">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp4.2">cited from="[1998] FCA 699">asthmatic child suffers brain damage after use of suppository prescribed by general practitioner</citphrase>
<citphrase id="cp4.3">cited from="[1998] FCA 699">whether theophylline contained in suppository caused brain damage</citphrase>
<citphrase id="cp4.4">cited from="[1998] FCA 699">whether trial judge entitled to reject strong views of paediatric pharmacologist based on reports of limited laboratory tests performed on other children</citphrase>
<citphrase id="cp4.5">cited from="[1998] FCA 699">whether trial judge entitled to prefer contrary medical evidence based on clinical experience and reading of medical literature</citphrase>
<citphrase id="cp4.6">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp4.7">cited from="[1998] FCA 699">appeal court should acknowledge such advantage</citphrase>
<citphrase id="cp4.8">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp4.9">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp4.10">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp4.11">cited from="[1998] FCA 699">conflicting evidence as to practice by general medical practitioners at relevant time</citphrase>
<citphrase id="cp4.12">cited from="[1998] FCA 699">trial judge required to choose</citphrase>
<citphrase id="cp4.13">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp4.14">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp4.15">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp4.16">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp4.17">cited from="[1998] FCA 699">asthmatic child suffers brain damage after use of phenobarbitone prescribed by locum to combat effects of prior use of suppository</citphrase>
<citphrase id="cp4.18">cited from="[1998] FCA 699">whether phenobarbitone caused damage</citphrase>
<citphrase id="cp4.19">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp4.20">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp4.21">cited from="[1998] FCA 699">manufacturer's liability</citphrase>
<citphrase id="cp4.22">cited from="[1998] FCA 699">drug contained in suppository</citphrase>
<citphrase id="cp4.23">cited from="[1998] FCA 699">lack of warning as to possible consequences on packaging</citphrase>
<citphrase id="cp4.24">cited from="[1998] FCA 699">doctor prescribing would not have read packaging anyway</citphrase>
<citphrase id="cp4.25">cited from="[1998] FCA 699">causation not established</citphrase>
<citphrase id="cp4.26">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp4.27">cited from="[1998] FCA 699">no error shown. damages</citphrase>
<citphrase id="cp4.28">cited from="[1998] FCA 699">various heads</citphrase>
<citphrase id="cp4.29">cited from="[1998] FCA 699">questions of fact</citphrase>
<citphrase id="cp4.30">cited from="[1998] FCA 699">interest on past component of griffiths v kerkemeyer award to await decision of full court in another pending appeal</citphrase>
<citphrase id="cp4.31">cited from="[1998] FCA 699">otherwise no error shown. appeal</citphrase>
<citphrase id="cp4.32">cited from="[1998] FCA 699">appeal on questions of fact</citphrase>
<citphrase id="cp4.33">cited from="[1998] FCA 699">expert evidence</citphrase>
<citphrase id="cp4.34">cited from="[1998] FCA 699">conflict between opinions of experts</citphrase>
<citphrase id="cp4.35">cited from="[1998] FCA 699">advantage of trial judge</citphrase>
<citphrase id="cp4.36">cited from="[1998] FCA 699">principles applicable.</citphrase>
<citphrase id="cp5.0">cited from="[1993] FCA 536">costs</citphrase>
<citphrase id="cp5.1">cited from="[1993] FCA 536">application that respondent's costs of certain issues be paid on indemnity basis</citphrase>
<citphrase id="cp5.2">cited from="[1993] FCA 536">discussion of applicable principles.</citphrase>
<citphrase id="cp6.0">cited from="[1988] FCA 202">practice and procedure</citphrase>
<citphrase id="cp6.1">cited from="[1988] FCA 202">costs</citphrase>
<citphrase id="cp6.2">cited from="[1988] FCA 202">discretion of the court</citphrase>
<citphrase id="cp6.3">cited from="[1988] FCA 202">award on solicitor and client' or indemnity' basis</citphrase>
<citphrase id="cp6.4">cited from="[1988] FCA 202">whether application vexatious</citphrase>
<citphrase id="cp6.5">cited from="[1988] FCA 202">form of order.</citphrase>
<citphrase id="cp7.0">citing from="[2011] FCA 450">practice and procedure</citphrase>
<citphrase id="cp7.1">citing from="[2011] FCA 450">costs</citphrase>
<citphrase id="cp7.2">citing from="[2011] FCA 450">claim for costs by unsuccessful party against successful party</citphrase>
<citphrase id="cp7.3">citing from="[2011] FCA 450">successful party succeeded only on the issue of discretion</citphrase>
<citphrase id="cp7.4">citing from="[2011] FCA 450">apportionment of costs ordered  practice and procedure</citphrase>
<citphrase id="cp7.5">citing from="[2011] FCA 450">costs</citphrase>
<citphrase id="cp7.6">citing from="[2011] FCA 450">claim for indemnity costs</citphrase>
<citphrase id="cp7.7">citing from="[2011] FCA 450">offers of compromise</citphrase>
<citphrase id="cp7.8">citing from="[2011] FCA 450">offers insufficient to satisfy neither the requirements of the calderbank principle nor of o 23 r 11 of the federal court rules</citphrase>
<citphrase id="cp7.9">citing from="[2011] FCA 450">claim for indemnity costs dismissed</citphrase>
<citphrase id="cp8.0">citing from="[2011] FMCA 30">bankruptcy</citphrase>
<citphrase id="cp8.1">citing from="[2011] FMCA 30">transfer of property declared void against trustee</citphrase>
<citphrase id="cp8.2">citing from="[2011] FMCA 30">costs follow the event.</citphrase>
<citphrase id="cp9.0">citing from="[2010] FMCA 1018">human rights</citphrase>
<citphrase id="cp9.1">citing from="[2010] FMCA 1018">costs</citphrase>
<citphrase id="cp9.2">citing from="[2010] FMCA 1018">application that respondent's costs of certain issues be paid on an indemnity basis</citphrase>
<citphrase id="cp9.3">citing from="[2010] FMCA 1018">applicable principles.</citphrase>
<citphrase id="cp10.0">citing from="[2010] FCA 956">practice and procedure</citphrase>
<citphrase id="cp10.1">citing from="[2010] FCA 956">costs</citphrase>
<citphrase id="cp10.2">citing from="[2010] FCA 956">indemnity costs</citphrase>
<citphrase id="cp10.3">citing from="[2010] FCA 956">offer of compromise</citphrase>
<citphrase id="cp10.4">citing from="[2010] FCA 956">whether rejection of offer of compromise by applicant entitled respondents to award of indemnity costs</citphrase>
<citphrase id="cp10.5">citing from="[2010] FCA 956">whether applicant acted unreasonably  practice and procedure</citphrase>
<citphrase id="cp10.6">citing from="[2010] FCA 956">costs</citphrase>
<citphrase id="cp10.7">citing from="[2010] FCA 956">indemnity costs</citphrase>
<citphrase id="cp10.8">citing from="[2010] FCA 956">whether applicant advanced case in wilful disregard of known facts and established law</citphrase>
<citphrase id="cp10.9">citing from="[2010] FCA 956">whether applicant prosecuted case for ulterior motive  practice and procedure</citphrase>
<citphrase id="cp10.10">citing from="[2010] FCA 956">costs</citphrase>
<citphrase id="cp10.11">citing from="[2010] FCA 956">indemnity costs</citphrase>
<citphrase id="cp10.12">citing from="[2010] FCA 956">whether applicant made or persisted with hopelessly weak claims</citphrase>
<citphrase id="cp10.13">citing from="[2010] FCA 956">whether the fact applicant persisted with claims to trial, but did not prosecute them, entitled respondent to indemnity costs  practice and procedure</citphrase>
<citphrase id="cp10.14">citing from="[2010] FCA 956">undertakings as to damages</citphrase>
<citphrase id="cp10.15">citing from="[2010] FCA 956">whether respondents entitled to compensation for damage suffered as a result of complying with undertakings and order</citphrase>
<citphrase id="cp10.16">citing from="[2010] FCA 956">whether compensation claimed by respondents was attributable to work required to be done in compliance with the undertakings and order</citphrase>
<citphrase id="cp11.0">citing from="[2010] FMCA 500">industrial law</citphrase>
<citphrase id="cp11.1">citing from="[2010] FMCA 500">costs</citphrase>
<citphrase id="cp11.2">citing from="[2010] FMCA 500">whether unreasonable act or omission</citphrase>
<citphrase id="cp11.3">citing from="[2010] FMCA 500">failure to discontinue upon issuance of conciliation certificate by australian industrial relations commission indicating no reasonable prospect of success</citphrase>
<citphrase id="cp11.4">citing from="[2010] FMCA 500">offer of compromise</citphrase>
<citphrase id="cp11.5">citing from="[2010] FMCA 500">further offer of compromise but under federal court rules</citphrase>
<citphrase id="cp11.6">citing from="[2010] FMCA 500">where offers not accepted</citphrase>
<citphrase id="cp11.7">citing from="[2010] FMCA 500">where damages awarded greater than offers not accepted.  industrial law</citphrase>
<citphrase id="cp11.8">citing from="[2010] FMCA 500">termination of employment</citphrase>
<citphrase id="cp11.9">citing from="[2010] FMCA 500">alleged unlawful termination by reason of race.  contract</citphrase>
<citphrase id="cp11.10">citing from="[2010] FMCA 500">unpaid employment entitlements</citphrase>
<citphrase id="cp11.11">citing from="[2010] FMCA 500">contractual terms.</citphrase>
<citphrase id="cp13.0">citing from="[2010] FCAFC 55">intellectual property</citphrase>
<citphrase id="cp13.1">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp13.2">citing from="[2010] FCAFC 55">validity of</citphrase>
<citphrase id="cp13.3">citing from="[2010] FCAFC 55">whether designs reasonably clear and succinct</citphrase>
<citphrase id="cp13.4">citing from="[2010] FCAFC 55">whether designs new and distinctive when compared with prior art base. intellectual property</citphrase>
<citphrase id="cp13.5">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp13.6">citing from="[2010] FCAFC 55">infringement of</citphrase>
<citphrase id="cp13.7">citing from="[2010] FCAFC 55">whether alleged infringing products embodied designs that were substantially similar in overall impression to registered designs. intellectual property</citphrase>
<citphrase id="cp13.8">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp13.9">citing from="[2010] FCAFC 55">infringement of</citphrase>
<citphrase id="cp13.10">citing from="[2010] FCAFC 55">joint liability for</citphrase>
<citphrase id="cp13.11">citing from="[2010] FCAFC 55">personal liability of director of infringing company. trade practices</citphrase>
<citphrase id="cp13.12">citing from="[2010] FCAFC 55">prescribed consumer product safety standard</citphrase>
<citphrase id="cp13.13">citing from="[2010] FCAFC 55">goods supplied in trade or commerce</citphrase>
<citphrase id="cp13.14">citing from="[2010] FCAFC 55">whether goods complied with standard</citphrase>
<citphrase id="cp13.15">citing from="[2010] FCAFC 55">sufficiency of proof. damages</citphrase>
<citphrase id="cp13.16">citing from="[2010] FCAFC 55">conduct amounting to infringement of design and contravention of trade practices legislation</citphrase>
<citphrase id="cp13.17">citing from="[2010] FCAFC 55">whether damages available under both heads</citphrase>
<citphrase id="cp13.18">citing from="[2010] FCAFC 55">where damages not awarded under trade practices legislation</citphrase>
<citphrase id="cp13.19">citing from="[2010] FCAFC 55">costs consequences. trade practices</citphrase>
<citphrase id="cp13.20">citing from="[2010] FCAFC 55">contraventions by companies of legislative norms</citphrase>
<citphrase id="cp13.21">citing from="[2010] FCAFC 55">directors</citphrase>
<citphrase id="cp13.22">citing from="[2010] FCAFC 55">accessorial liability</citphrase>
<citphrase id="cp13.23">citing from="[2010] FCAFC 55">whether knowingly involved. practice and procedure</citphrase>
<citphrase id="cp13.24">citing from="[2010] FCAFC 55">costs</citphrase>
<citphrase id="cp13.25">citing from="[2010] FCAFC 55">whether appropriate to deny successful respondent his costs with respect to period before he swore to his non-involvement in conduct by company of which he had been director</citphrase>
<citphrase id="cp13.26">citing from="[2010] FCAFC 55">offer of compromise</citphrase>
<citphrase id="cp13.27">citing from="[2010] FCAFC 55">whether party entitled to costs incurred after service of offer of compromise on an indemnity basis.</citphrase>
<citphrase id="cp14.0">citing from="[2010] FCA 506">costs</citphrase>
<citphrase id="cp14.1">citing from="[2010] FCA 506">whether inadequacy of decision maker's statement of reasons has a bearing on costs</citphrase>
<citphrase id="cp14.2">citing from="[2010] FCA 506">whether indemnity costs should be ordered</citphrase>
<citphrase id="cp14.3">citing from="[2010] FCA 506">whether refusal of calderbank offer was unreasonable</citphrase>
<citphrase id="cp14.4">citing from="[2010] FCA 506">whether indemnity costs appropriate because proceeding was brought and maintained for ulterior or extraneous purpose.</citphrase>
<citphrase id="cp15.0">citing from="[2010] FCA 415">taxation</citphrase>
<citphrase id="cp15.1">citing from="[2010] FCA 415">consideration of whether order 23 of the federal court rules applies to an appealable objection decision arising under s 14zz of the taxation administration act 1953 (cth)</citphrase>
<citphrase id="cp15.2">citing from="[2010] FCA 415">consideration of the application of the federal court rules generally to an appealable objection decision</citphrase>
<citphrase id="cp15.3">citing from="[2010] FCA 415">consideration of orders 52a and 52b of the federal court rules</citphrase>
<citphrase id="cp15.4">citing from="[2010] FCA 415">consideration of whether an order 23 offer made by the applicants to the commissioner of taxation is a "genuine" offer</citphrase>
<citphrase id="cp15.5">citing from="[2010] FCA 415">consideration of whether an offer to forego significant recoverable costs and walk away from a proceeding is a genuine offer</citphrase>
<citphrase id="cp15.6">citing from="[2010] FCA 415">consideration of the special circumstances said to warrant an order other than an order for indemnity costs from the date of the offer</citphrase>
<citphrase id="cp15.7">citing from="[2010] FCA 415">consideration of a calderbank offer made to the commissioner</citphrase>
<citphrase id="cp15.8">citing from="[2010] FCA 415">consideration of whether the commissioner acted unreasonably in electing to reject the offer</citphrase>
<citphrase id="cp15.9">citing from="[2010] FCA 415">consideration of the approach adopted by the commissioner to putting the taxpayers to proof of an issue concerning the cost base of the acquisition of shares the subject of a claim of capital loss</citphrase>
<citphrase id="cp15.10">citing from="[2010] FCA 415">consideration of whether the commissioner acted unreasonably in putting the taxpayers to proof and whether an order for indemnity costs of the proof of the issue is warranted  practice and procedure</citphrase>
<citphrase id="cp15.11">citing from="[2010] FCA 415">consideration of the application of order 23 to proceedings under order 52b of the federal court rules</citphrase>
<citphrase id="cp15.12">citing from="[2010] FCA 415">consideration of the principles governing whether an offer is a genuine offer</citphrase>
<citphrase id="cp15.13">citing from="[2010] FCA 415">consideration of whether an offer by a party to abandon any claim for significant recoverable costs is a genuine offer of settlement</citphrase>
<citphrase id="cp15.14">citing from="[2010] FCA 415">consideration of a calderbank offer and whether the commissioner of taxation acted unreasonably in electing to reject the offer</citphrase>
<citphrase id="cp16.0">citing from="[2010] FMCA 52">bankruptcy</citphrase>
<citphrase id="cp16.1">citing from="[2010] FMCA 52">costs  interest</citphrase>
<citphrase id="cp16.2">citing from="[2010] FMCA 52">matter remitted by high court to determine costs of original proceeding and award of interest upon the sum of judgment entered in the high court.</citphrase>
<citphrase id="cp17.0">citing from="[2009] FMCA 966">human rights</citphrase>
<citphrase id="cp17.1">citing from="[2009] FMCA 966">costs</citphrase>
<citphrase id="cp17.2">citing from="[2009] FMCA 966">respondent successful</citphrase>
<citphrase id="cp17.3">citing from="[2009] FMCA 966">whether parties should pay their own costs</citphrase>
<citphrase id="cp17.4">citing from="[2009] FMCA 966">whether indemnity costs justified</citphrase>
<citphrase id="cp17.5">citing from="[2009] FMCA 966">"calderbank" offer</citphrase>
<citphrase id="cp17.6">citing from="[2009] FMCA 966">whether costs should be stayed until the outcome of an application for leave to appeal.</citphrase>
<citphrase id="cp18.0">citing from="[2009] FCA 920">intellectual property</citphrase>
<citphrase id="cp18.1">citing from="[2009] FCA 920">consideration of the disposition of costs in a proceeding which involved success by the applicant in a claim to relief based upon unjustified threats of patent infringement and infringement of a registered design, a cross-claim by the intellectual property owner for relief based upon infringement and a further cross-claim by the applicant asserting invalidity of the patent on a number of grounds</citphrase>
<citphrase id="cp18.2">citing from="[2009] FCA 920">consideration of an offer to compromise</citphrase>
<citphrase id="cp18.3">citing from="[2009] FCA 920">consideration of order 23, rule 11 of the federal court rules and the principles guiding the exercise of discretion in the disposition of costs as to either the claims or issues within the claims   practice and procedure</citphrase>
<citphrase id="cp18.4">citing from="[2009] FCA 920">consideration of an offer to compromise</citphrase>
<citphrase id="cp18.5">citing from="[2009] FCA 920">consideration of order 23, rule 11 of the federal court rules and the principles guiding the exercise of discretion in the disposition of costs as to either the claims or issues within the claims</citphrase>
<citphrase id="cp18.6">citing from="[2009] FCA 920">consideration of whether an offer to compromise which foregoes a claim to a recovery of costs incurred to the date of the offer is a genuine offer of compromise</citphrase>
<citphrase id="cp19.0">citing from="[2009] FMCA 63">costs</citphrase>
<citphrase id="cp19.1">citing from="[2009] FMCA 63">claim for indemnity costs by successful respondent</citphrase>
<citphrase id="cp19.2">citing from="[2009] FMCA 63">applicant seeking no order as to costs or scale costs order</citphrase>
<citphrase id="cp19.3">citing from="[2009] FMCA 63">consideration of calderbank offers</citphrase>
<citphrase id="cp19.4">citing from="[2009] FMCA 63">consideration of the conduct and nature of the proceedings</citphrase>
<citphrase id="cp19.5">citing from="[2009] FMCA 63">costs awarded on ordinary basis.</citphrase>
<citphrase id="cp20.0">citing from="[2009] FMCA 89">costs</citphrase>
<citphrase id="cp20.1">citing from="[2009] FMCA 89">trade practices</citphrase>
<citphrase id="cp20.2">citing from="[2009] FMCA 89">calderbank letter</citphrase>
<citphrase id="cp20.3">citing from="[2009] FMCA 89">whether respondent declined offers unreasonably.</citphrase>
<citphrase id="cp21.0">citing from="[2008] FCAFC 173">insurance</citphrase>
<citphrase id="cp21.1">citing from="[2008] FCAFC 173">professional risks policy</citphrase>
<citphrase id="cp21.2">citing from="[2008] FCAFC 173">claims made policy</citphrase>
<citphrase id="cp21.3">citing from="[2008] FCAFC 173">policy covered claims notified to insurer within month subsequent to policy period if insureds, during policy period, aware of any fact, situation or circumstance that might give rise to claim</citphrase>
<citphrase id="cp21.4">citing from="[2008] FCAFC 173">whether required insureds to be aware of fact etc and aware that it might give rise to claim</citphrase>
<citphrase id="cp21.5">citing from="[2008] FCAFC 173">whether insureds were aware that fact etc might give rise to claim</citphrase>
<citphrase id="cp21.6">citing from="[2008] FCAFC 173">quality of awareness required</citphrase>
<citphrase id="cp21.7">citing from="[2008] FCAFC 173">whether insurer notified within month subsequent to policy period</citphrase>
<citphrase id="cp21.8">citing from="[2008] FCAFC 173">whether insurer could rely on absence of notification</citphrase>
<citphrase id="cp21.9">citing from="[2008] FCAFC 173">whether insurer refused to pay under policy "by reason only" of absence of notification</citphrase>
<citphrase id="cp21.10">citing from="[2008] FCAFC 173">insurance contracts act 1984 (cth), s 54(1).  insurance</citphrase>
<citphrase id="cp21.11">citing from="[2008] FCAFC 173">professional risks policy</citphrase>
<citphrase id="cp21.12">citing from="[2008] FCAFC 173">insureds and a non-insured sued for damages</citphrase>
<citphrase id="cp21.13">citing from="[2008] FCAFC 173">proceeding settled on basis that insureds pay applicants' costs, including costs attributable to claims against non-insured</citphrase>
<citphrase id="cp21.14">citing from="[2008] FCAFC 173">insureds sought indemnity under policy</citphrase>
<citphrase id="cp21.15">citing from="[2008] FCAFC 173">whether settlement reasonable to the extent that it involved the insureds paying so much of the applicants' costs as related to claims against non-insured. insurance</citphrase>
<citphrase id="cp21.16">citing from="[2008] FCAFC 173">professional risks policy</citphrase>
<citphrase id="cp21.17">citing from="[2008] FCAFC 173">insureds and a non-insured sued for damages</citphrase>
<citphrase id="cp21.18">citing from="[2008] FCAFC 173">indemnity for defence costs sought under policy of insurer and under policy of another insurer</citphrase>
<citphrase id="cp21.19">citing from="[2008] FCAFC 173">other insurer paid out under its policy</citphrase>
<citphrase id="cp21.20">citing from="[2008] FCAFC 173">whether non-insured was covered under other policy</citphrase>
<citphrase id="cp21.21">citing from="[2008] FCAFC 173">whether permissible for insureds and non-insured to agree between themselves for payout received from other insured to be allocated first to defence costs of non-insured</citphrase>
<citphrase id="cp21.22">citing from="[2008] FCAFC 173">effect on size of defence costs claims by insureds under policy. costs</citphrase>
<citphrase id="cp21.23">citing from="[2008] FCAFC 173">claim for indemnity costs</citphrase>
<citphrase id="cp21.24">citing from="[2008] FCAFC 173">calderbank letter sent by cross-claimants who ultimately succeeded</citphrase>
<citphrase id="cp21.25">citing from="[2008] FCAFC 173">criterion for award of indemnity costs in such circumstances</citphrase>
<citphrase id="cp21.26">citing from="[2008] FCAFC 173">whether rejection of offer unreasonable.</citphrase>
<citphrase id="cp22.0">citing from="[2008] FMCA 1358">trade practices</citphrase>
<citphrase id="cp22.1">citing from="[2008] FMCA 1358">costs</citphrase>
<citphrase id="cp22.2">citing from="[2008] FMCA 1358">calderbank offer</citphrase>
<citphrase id="cp22.3">citing from="[2008] FMCA 1358">indemnity/solicitor-client costs</citphrase>
<citphrase id="cp22.4">citing from="[2008] FMCA 1358">whether rejection of offer unreasonable</citphrase>
<citphrase id="cp22.5">citing from="[2008] FMCA 1358">consideration of reasonableness at time of offer</citphrase>
<citphrase id="cp22.6">citing from="[2008] FMCA 1358">finding that rejection not unreasonable</citphrase>
<citphrase id="cp22.7">citing from="[2008] FMCA 1358">party-party costs ordered.</citphrase>
<citphrase id="cp23.0">citing from="[2008] FCA 1056">costs</citphrase>
<citphrase id="cp23.1">citing from="[2008] FCA 1056">indemnity costs</citphrase>
<citphrase id="cp23.2">citing from="[2008] FCA 1056">calderbank letter</citphrase>
<citphrase id="cp23.3">citing from="[2008] FCA 1056">refusal of offer</citphrase>
<citphrase id="cp23.4">citing from="[2008] FCA 1056">whether refusal unreasonable</citphrase>
<citphrase id="cp23.5">citing from="[2008] FCA 1056">variety of factors relevant to assessment of unreasonableness</citphrase>
<citphrase id="cp23.6">citing from="[2008] FCA 1056">indemnity costs refused</citphrase>
<citphrase id="cp24.0">citing from="[2008] NSWLEC 107">costs :</citphrase>
<citphrase id="cp24.1">citing from="[2008] NSWLEC 107">indemnity costs awarded on basis of calderbank offer</citphrase>
<citphrase id="cp24.2">citing from="[2008] NSWLEC 107">proceedings for compensation for compulsory acquisition of land.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCA 450" id="cs0">As was observed by the Full Court in CGU Insurance Ltd at [75], the following principles should apply where an offer is made not in accordance with the Rules but which is purportedly a Calderbank offer:

 From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 , 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable.

 </sentence>
<sentence from="[2011] FMCA 30" id="cs1">In support of an indemnity costs order, Mr Cvitanovic makes the following points: Mr Cvitanovic's demands for the money were made prior to the commencement of the litigation, and Mr Kukulovski's responses made no claim to hold a security interest in the funds until after the proceedings were commenced. The deeds of guarantee upon which this assertion was based were not produced until after the proceedings were commenced. Mr Cvitanovic's demands were resisted upon denials by Mr Kukulovski of knowledge of Mr Rosee's insolvency at the relevant times, which were not maintained at the hearing. Mr Cvitanovic offered to settle the matter for $30,000 inclusive of costs at a mediation on 10 September 2010, and in a "without prejudice offer to settle the proceedings" made and rejected on 22 October 2010. The Court should take the view "that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs" (citing Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 and Gray J in Hamod v State of New South Wales (2002) 188 ALR 659 and 665). </sentence>
<sentence from="[2010] FMCA 1018" id="cs2">There is conflicting authority between the NSW state courts and the Federal Court on the question of who bears the onus of proof where an offer of compromise has been made and rejected. This court should follow Federal Court authority. In Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 at [6] ---[11] Jessop J said 8.: What follows from a consideration of Calderbank and of Cutts v Head themselves is that, necessarily, those cases articulated no proposition which linked a party's entitlement to indemnity costs with a settlement offer previously made by that party, and rejected by the other party. In my view, if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. The second general observation which should be made requires me to advert to the authorities upon which Sheppard J relied in Colgate-Palmolive. The Applicant relies on the following authorities in support of the contention that the rejection of a settlement offer will not necessarily lead to an indemnity costs order: Acubra Pty Ltd v Manningham Medical Centre Pty Ltd (No.2) [2008] FMCA 1358 ; John Hayes and Associates Pty Ltd v Kimberley ---Clark Australia Pty Ltd; Black v Tomislav Lipova BHNF Maria Lipovac [1988] FCA 699 and Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 per Jessup J at [11] where His Honour stated: </sentence>
<sentence from="[2010] FCA 956" id="cs3">Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac ; [1998] FCA 699 ; (1998) 217 ALR 386 , 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable.</sentence>
<sentence from="[2010] FMCA 500" id="cs4">Ms Attwood's case is essentially that reasonable offers were rejected by the respondent and therefore she ought to be awarded costs. Ms Attwood submits that: the rejection of a reasonable offer is not to be automatically regarded as unreasonable, [33] the rejection of a favourable offer at a time when the party had ample time to assess a claim can be unreasonable in circumstances where it would be unfair to require another party to bear costs for which it was not reimbursed; [34] in Donnelly the Full Court of the Federal Court said that: ... The foundation for the order is the need for the costs order to do equity where a party who has succeeded in the proceeding has made a reasonable attempt to terminate the proceeding by an offer to compromise shown to have been a fair offer in all the circumstances and to have provided appropriate opportunity for the offeree to consider and deal with the offer. [35] failure to accept an extremely favourable offer may be conduct which is quite unreasonable. [36] </sentence>
<sentence from="[2010] FCA 630" id="cs5">In the case of a Calderbank offer, Moore, Finn and Jessup JJ recently said in CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Ltd [2008] FCAFC 173 at [75] :

 "75 From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 , 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer . While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable. " (emphasis added)

 </sentence>
<sentence from="[2010] FCAFC 55" id="cs6">Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at 128 [35] ; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable. </sentence>
<sentence from="[2010] FCA 506" id="cs7">The test, therefore (having regard to the subjection of the innocent party to the expenditure of costs) is whether the offeree's rejection of the relevant settlement offer was unreasonable in the circumstances then obtaining: Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42. The fact that the offeree was ultimately unsuccessful in the litigation, and could have accepted a reasonable settlement at an earlier stage does not of itself show that the course adopted by the offeree was relevantly unreasonable or imprudent: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) ; [2002] FCA 224 ; (2002) 190 ALR 121 at [35] per
Weinberg J. </sentence>
<sentence from="[2010] FCA 415" id="cs8">The Full Court cited Black v Lipovac (1998) 217 ALR 386 at 342 and Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28 in support of that proposition and went on to say at [75]:

 It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer . While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable. [emphasis in bold added]

See also Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 at [11] per Tamberlin, Finn and Sundberg JJ; IFTC Broking Services v Commissioner of Taxation [2010] FCAFC 31 at [12] per Stone, Edmonds and Jagot JJ. The offeree's rejection must be unreasonable, not "plainly unreasonable", because, as the Full Court said in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 342:

 To adopt an especially high standard of unreasonableness would operate as a fetter on the discretion to award indemnity costs and diminish the effectiveness of the Calderbank offer as an incentive to settlement.

 Unreasonableness
 </sentence>
<sentence from="[2010] FMCA 52" id="cs9">In CGU Insurance Ltd v Corrections Corporations of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 the Full Court indicated that it was necessary for parties seeking indemnity costs to demonstrate the other party's refusal was unreasonable. Their Honours Moore, Finn and Jessup JJ at [75] stated: [75] From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at 128 [35] ; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable. </sentence>
<sentence from="[2009] FMCA 966" id="cs10">Mr Batley submitted that the Respondent has the onus of establishing that it was unreasonable for the Applicant to reject the offers (see Evans Shire Council v Richardson (No.2) [15] at [26]. The mere refusal of a Calderbank offer does not of itself warrant an order for indemnity costs, and the offeror needs to show that the conduct of the offeree was unreasonable (see Dais Studio Pty Ltd v Bullet Creative Pty Ltd [16] at [9]). </sentence>
<sentence from="[2009] FCA 920" id="cs11">The relationship between the exercise of the discretion either generally or in the context of a Calderbank offer and the exercise of discretion conditioned by Order 23, rule 11(4) was explained by the Full Court in CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 by the Court, Moore, Finn and Jessup JJ at [75] in these terms:
 From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac (1998) 217 ALR 368 , 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable.

 </sentence>
<sentence from="[2009] FMCA 63" id="cs12">There is conflicting authority between the NSW state courts and the Federal Court on the question of who bears the onus of proof where an offer of compromise has been made and rejected. This Court should follow Federal Court authority. In Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 at [6] - [11] Jessop J said [8] : What follows from a consideration of Calderbank and of Cutts v Head themselves is that, necessarily, those cases articulated no proposition which linked a party's entitlement to indemnity costs with a settlement offer previously made by that party, and rejected by the other party. In my view, if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. The second general observation which should be made requires me to advert to the authorities upon which Sheppard J relied in Colgate-Palmolive .</sentence>
<sentence from="[2009] FMCA 89" id="cs13">These authorities which represented the situation in New South Wales are substantially mirrored by decisions in Victoria in particular Mutual Community Ltd v Lorden Holdings Pty Ltd  Ors (1993) (unreported, Vic Sup Ct, Byrne J, 15 April 1993); MT Associates Pty Ltd v Aqua-Max Pt Ltd (No 3 ) [2000] VSC 163 ; Premier Building and Consulting Pty Ltd (Receivers appointed) v Spotless Group Limited (No 13) (2007) VSC 516 ; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 and in the Federal sphere by NMFM Property Pty Ltd and Others v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 187 ALR 654 ; Alpine Hardwoods (Aust) Pty Ltd and Anor v Hardys Pty Ltd and Anor (No 2) [2002] FCA 224 ; Wenzel v Australian Stock Exchange Ltd [2002] FCA 353 ; John S Hayes  Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) FCA 1520 ; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42. </sentence>
<sentence from="[2008] FCAFC 173" id="cs14">75 From the tenor of claims which have come before the court in recent years, there appears to be a view abroad that the failure of a party who has rejected a Calderbank offer ultimately to achieve a better outcome than provided for in the offer leads to a presumptive entitlement to indemnity costs with respect to the period subsequent to the offer. Such a view would be mistaken. Where a moving party (including a cross-claimant) offers to settle for a sum which is less than he or she eventually achieves at trial, there is a presumptive entitlement to indemnity costs under O 23 r 11(4) of the Federal Court Rules . However, where recourse is not had to the O 23, but reliance is placed upon the court's general discretion, it is necessary for the party seeking indemnity costs to demonstrate that the other party's refusal of the Calderbank offer was unreasonable: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 , 432; Maniotis v JH Lever  Co Pty Ltd (No 2) [2006] FCAFC 28. It is not sufficient that the offer was a reasonable one: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , 128 [35]; Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 , [11]. In considering this question in a particular case, the matter of unreasonableness will be judged by reference to the circumstances facing the offeree at the time of the offer. While the eventual outcome in the case may go part of the way in this regard, there is no presumption that ultimate success in the proceeding for the offeror necessarily renders the offeree's rejection unreasonable. </sentence>
<sentence from="[2008] FMCA 1358" id="cs15">The applicants also rely upon the comments of French J (as he then was) in University of Western Australia v Gray (No 21) BC200806572 where he concluded at [32] in summarising the applicable principles that: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]) - If the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected. Was the rejection of the Calderbank offer unreasonable? </sentence>
<sentence from="[2008] FCA 1056" id="cs16">32 The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are:

1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]):

 if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle.

2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected. </sentence>
<sentence from="[2008] NSWLEC 107" id="cs17">5 The RTA submits that it must be shown that its conduct in rejecting the Calderbank offer was unreasonable if there is to be a departure from the ordinary rule that costs are to be paid on a party and party basis: Dais Studio Pty Limited v Bullet Creative Pty Limited [2008] FCA 42. There Jessup J referred at [9] to Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 where the Full Court of the Federal Court referred to a line of authority in the court which supported the proposition that the mere refusal of a Calderbank offer does not, of itself, warrant an order for indemnity costs and that the offeror needs to show that the conduct of the offeree was unreasonable.</sentence>
</citances>
<legistitles>
<title id="l0">COPYRIGHT ACT 1968 </title>
<title id="l1">COPYRIGHT ACT 1968 - SECT 115 Actions for infringement</title>
<title id="l2">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCAFC 96">migration</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCAFC 96">appeal</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCAFC 96">student visa</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCAFC 96">holding by federal magistrate that invalid s 20 notice under education services for overseas students act invalidated cancellation pursuant to s 116 of migration act</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCAFC 96">concession by visa holder that judgment of federal magistrate not supportable on basis of existence of a factual causal connection between s 20 notice and mandatory cancellation under s 116</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCAFC 96">visa holder also conceding validity of s 20 notice not a prerequisite for mandatory cancellation under s 116</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCAFC 96">contention by visa holder that "legal interaction" between the two acts requires conclusion s 116 mandatory power not exercisable when occasioned by s 20 notice without application of other provisions of overseas students act requiring consideration of exceptional circumstances</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCAFC 35">immigration</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCAFC 35">visas</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCAFC 35">review of visa cancellation decision by migration review tribunal ('mrt')</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCAFC 35">alleged failure of visa-holder to comply with condition of student visa</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCAFC 35">whether it was open to mrt to find the appellant's education provider had failed to certify that he had achieved an academic result that was at least satisfactory</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCAFC 35">proper construction of documents issued by education provider</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCAFC 35">whether education provider has power to withdraw or amend a certificate of satisfaction</citphrase>
<citphrase id="cp1.7">cited from="[2006] FCAFC 35">effect on jurisdiction of mrt of any defect in notice give to student pursuant to s 20 of education services for overseas students act 2000.</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCAFC 193">migration</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCAFC 193">student visa</citphrase>
<citphrase id="cp2.2">cited from="[2005] FCAFC 193">proposed consent orders quashing decision of the migration review tribunal</citphrase>
<citphrase id="cp2.3">cited from="[2005] FCAFC 193">validity of notice produced under s 20 of the education services for overseas students act 2000 (cth)</citphrase>
<citphrase id="cp2.4">cited from="[2005] FCAFC 193">notice misleading</citphrase>
<citphrase id="cp3.0">cited from="[2005] FMCA 841">migration</citphrase>
<citphrase id="cp3.1">cited from="[2005] FMCA 841">visa</citphrase>
<citphrase id="cp3.2">cited from="[2005] FMCA 841">student visa.</citphrase>
<citphrase id="cp4.0">cited from="[2004] FCAFC 333">migration</citphrase>
<citphrase id="cp4.1">cited from="[2004] FCAFC 333">review of migration review tribunal decision</citphrase>
<citphrase id="cp4.2">cited from="[2004] FCAFC 333">condition 8202(3) (b) of schedule 8 of the migration regulations 1994</citphrase>
<citphrase id="cp4.3">cited from="[2004] FCAFC 333">cancellation of student visa on grounds of failure to make satisfactory academic progress</citphrase>
<citphrase id="cp5.0">cited from="[2004] FCAFC 238">migration</citphrase>
<citphrase id="cp5.1">cited from="[2004] FCAFC 238">appeal</citphrase>
<citphrase id="cp5.2">cited from="[2004] FCAFC 238">visas</citphrase>
<citphrase id="cp5.3">cited from="[2004] FCAFC 238">student visa</citphrase>
<citphrase id="cp5.4">cited from="[2004] FCAFC 238">cancellation of visa</citphrase>
<citphrase id="cp5.5">cited from="[2004] FCAFC 238">conditions on which visa granted</citphrase>
<citphrase id="cp5.6">cited from="[2004] FCAFC 238">breach of conditions of visa</citphrase>
<citphrase id="cp5.7">cited from="[2004] FCAFC 238">where visa must be cancelled if 'prescribed circumstances' exist</citphrase>
<citphrase id="cp5.8">cited from="[2004] FCAFC 238">notice issued under education services for overseas students act 2000 (cth)</citphrase>
<citphrase id="cp5.9">cited from="[2004] FCAFC 238">appellant in breach of conditions</citphrase>
<citphrase id="cp5.10">cited from="[2004] FCAFC 238">breach reported to department of immigration and multicultural and indigenous affairs</citphrase>
<citphrase id="cp5.11">cited from="[2004] FCAFC 238">delegate of the minister for immigration and multicultural and indigenous affairs found appellant in breach of condition 8202(3)(a) which required appellant to attend 80 percent of contact hours at secondary school</citphrase>
<citphrase id="cp5.12">cited from="[2004] FCAFC 238">appellant sought review in migration review tribunal</citphrase>
<citphrase id="cp5.13">cited from="[2004] FCAFC 238">migration review tribunal disagreed with delegate's decision but concluded that the appellant breached condition 8202(3)(b) in that the appellant had not achieved an academic result 'at least satisfactory'</citphrase>
<citphrase id="cp5.14">cited from="[2004] FCAFC 238">whether a letter from the appellant's secondary school offering readmission to the appellant was certification that the appellant had achieved an academic result that was 'at least satisfactory'</citphrase>
<citphrase id="cp5.15">cited from="[2004] FCAFC 238">whether delegate had erred by inquiring whether the appellant had made 'satisfactory academic progress'</citphrase>
<citphrase id="cp5.16">cited from="[2004] FCAFC 238">interpretation</citphrase>
<citphrase id="cp5.17">cited from="[2004] FCAFC 238">whether substantial compliance with condition 8202 sufficient.</citphrase>
<citphrase id="cp6.0">cited from="[2004] FCA 1078">migration</citphrase>
<citphrase id="cp6.1">cited from="[2004] FCA 1078">student visa</citphrase>
<citphrase id="cp6.2">cited from="[2004] FCA 1078">cancellation</citphrase>
<citphrase id="cp6.3">cited from="[2004] FCA 1078">condition 8202</citphrase>
<citphrase id="cp6.4">cited from="[2004] FCA 1078">decision of migration review tribunal</citphrase>
<citphrase id="cp6.5">cited from="[2004] FCA 1078">whether jurisdictional error</citphrase>
<citphrase id="cp6.6">cited from="[2004] FCA 1078">relationship between s 116, s 119 migration act 1958 (cth) and s 20 education services for overseas students act 2000 (cth)</citphrase>
<citphrase id="cp10.0">cited from="[1996] HCA 6">immigration</citphrase>
<citphrase id="cp10.1">cited from="[1996] HCA 6">refugees</citphrase>
<citphrase id="cp10.2">cited from="[1996] HCA 6">application to review decisions of minister's delegates refusing claim for refugee status</citphrase>
<citphrase id="cp10.3">cited from="[1996] HCA 6">application of chan v minister for immigration and ethnic affairs [1989] hca 62 ; (1989) 169 clr 379</citphrase>
<citphrase id="cp10.4">cited from="[1996] HCA 6">'real chance' of persecution test</citphrase>
<citphrase id="cp10.5">cited from="[1996] HCA 6">whether delegates failed properly to consider real chance of persecution.   administrative law</citphrase>
<citphrase id="cp10.6">cited from="[1996] HCA 6">judicial review</citphrase>
<citphrase id="cp10.7">cited from="[1996] HCA 6">decisions as to 'refugee status'</citphrase>
<citphrase id="cp10.8">cited from="[1996] HCA 6">proper role of reviewing court.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 104 Effect of provisions empowering a person to require or prohibit conduct</title>
<title id="l2">CORPORATIONS ACT 2001 - SECT 108 Parts of dollar to be disregarded in determining majority in value of creditors etc.</title>
<title id="l3">CORPORATIONS ACT 2001 - SECT 116 Trade unions cannot be registered</title>
<title id="l4">CORPORATIONS ACT 2001 - SECT 124 Legal capacity and powers of a company</title>
<title id="l5">EDUCATION SERVICES FOR OVERSEAS STUDENTS ACT 2000 </title>
<title id="l6">EDUCATION SERVICES FOR OVERSEAS STUDENTS ACT 2000 - SECT 20 Sending students notice of visa breaches</title>
<title id="l7">EDUCATION SERVICES FOR OVERSEAS STUDENTS ACT 2000 - SECT 116 Attendance notices</title>
<title id="l8">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l9">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 25 Exercise of appellate jurisdiction</title>
<title id="l10">MIGRATION ACT 1958 </title>
<title id="l11">MIGRATION ACT 1958 - SECT 20 Reasonable compensation</title>
<title id="l12">MIGRATION ACT 1958 - SECT 116 Power to cancel</title>
<title id="l13">MIGRATION ACT 1958 - SECT 119 Notice of proposed cancellation</title>
<title id="l14">MIGRATION ACT 1958 - SECT 137 Provision of information--holders of business visas</title>
<title id="l15">MIGRATION ACT 1958 - SECT 137J Non-complying students may have their visas automatically cancelled</title>
<title id="l16">MIGRATION ACT 1958 - SECT 137K Applying for revocation of cancellation</title>
<title id="l17">MIGRATION ACT 1958 - SECT 137L Dealing with the application</title>
<title id="l18">MIGRATION ACT 1958 - SECT 137P Effect of revocation</title>
<title id="l19">MIGRATION REGULATIONS 1994 </title>
<title id="l20">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCA 1179">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCA 1179">applications for recusal and adjournment</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCA 1179">applications refused</citphrase>
<citphrase id="cp1.0">cited from="[2006] HCA 44">forge v australian securities and investments commission  constitutional law (cth)</citphrase>
<citphrase id="cp1.1">cited from="[2006] HCA 44">chapter iii</citphrase>
<citphrase id="cp1.2">cited from="[2006] HCA 44">state supreme courts</citphrase>
<citphrase id="cp1.3">cited from="[2006] HCA 44">acting judges</citphrase>
<citphrase id="cp1.4">cited from="[2006] HCA 44">section 37 of the supreme court act 1970 (nsw) provided for appointments to act as a judge, for a period not exceeding 12 months</citphrase>
<citphrase id="cp1.5">cited from="[2006] HCA 44">former federal court judge appointed as an acting judge of the supreme court of new south wales under a series of commissions pursuant to s 37 of the supreme court act</citphrase>
<citphrase id="cp1.6">cited from="[2006] HCA 44">whether the appointments as an acting judge were validly made</citphrase>
<citphrase id="cp1.7">cited from="[2006] HCA 44">whether s 37 of the supreme court act was valid</citphrase>
<citphrase id="cp1.8">cited from="[2006] HCA 44">whether acting judges, when appointed other than on an occasional and exceptional basis, substantially impair public confidence in the supreme court's institutional integrity and impartiality and prevent that court from answering to the constitutional description of "supreme court of any state"</citphrase>
<citphrase id="cp1.9">cited from="[2006] HCA 44">distinctions between permanent judges and acting judges</citphrase>
<citphrase id="cp1.10">cited from="[2006] HCA 44">significance of a substantial increase in the number of acting judges appointed to the supreme court, the incidence of reappointing such acting judges and the duration of such appointments since 1989</citphrase>
<citphrase id="cp1.11">cited from="[2006] HCA 44">whether changes in appointments of acting judges amounts to a fundamental alteration of the character and composition of the supreme court</citphrase>
<citphrase id="cp1.12">cited from="[2006] HCA 44">relevance of the fact that acting judges are typically retired judges.  constitutional law (cth)</citphrase>
<citphrase id="cp1.13">cited from="[2006] HCA 44">no objection to the appointment of the acting judge in question taken at trial or on appeal to the new south wales court of appeal</citphrase>
<citphrase id="cp1.14">cited from="[2006] HCA 44">whether parties contesting the validity of appointment prevented from doing so by reason of acquiescence or waiver</citphrase>
<citphrase id="cp1.15">cited from="[2006] HCA 44">opposing parties did not submit acquiescence or waiver, if any, prevented objection to validity of appointment</citphrase>
<citphrase id="cp1.16">cited from="[2006] HCA 44">whether high court should consider effect of acquiescence or waiver.  constitutional law (cth)</citphrase>
<citphrase id="cp1.17">cited from="[2006] HCA 44">judicial power of the commonwealth</citphrase>
<citphrase id="cp1.18">cited from="[2006] HCA 44">vesting in state courts</citphrase>
<citphrase id="cp1.19">cited from="[2006] HCA 44">federal character of the commonwealth</citphrase>
<citphrase id="cp1.20">cited from="[2006] HCA 44">power of state parliament to confer function incompatible with exercise by state court of federal judicial power</citphrase>
<citphrase id="cp1.21">cited from="[2006] HCA 44">whether appointments of acting judges in large numbers consistent with judicial process and chapter iii of the constitution .  judges</citphrase>
<citphrase id="cp1.22">cited from="[2006] HCA 44">acting judges</citphrase>
<citphrase id="cp1.23">cited from="[2006] HCA 44">validity of orders made by acting judge</citphrase>
<citphrase id="cp1.24">cited from="[2006] HCA 44">whether such orders valid regardless of validity of appointment of the acting judge by reason of the de facto officers doctrine.  corporations law</citphrase>
<citphrase id="cp1.25">cited from="[2006] HCA 44">transitional provisions of ch 10 of the corporations act 2001 (cth)</citphrase>
<citphrase id="cp1.26">cited from="[2006] HCA 44">asic brought proceedings, in 2001, against the parties contesting validity of the appointment of the acting judge in question alleging contravention, in 1998, of civil penalty provisions of the corporations law of new south wales</citphrase>
<citphrase id="cp1.27">cited from="[2006] HCA 44">whether, after the repeal of the relevant civil penalty  provisions of the state corporations law and the enactment of the corporations act , the proceedings alleging contravention could be brought.</citphrase>
<citphrase id="cp2.0">cited from="[2002] HCA 47">solomons v district court of new south wales  criminal law and practice</citphrase>
<citphrase id="cp2.1">cited from="[2002] HCA 47">costs</citphrase>
<citphrase id="cp2.2">cited from="[2002] HCA 47">trial and acquittal in state court on indictment charging offences under a law of the commonwealth</citphrase>
<citphrase id="cp2.3">cited from="[2002] HCA 47">power of state court to grant certificate under s 2 of the costs in criminal cases act 1967 (nsw) ("the costs act") entitling defendant to apply to under secretary of attorney-general's department for payment of costs from state consolidated revenue fund</citphrase>
<citphrase id="cp2.4">cited from="[2002] HCA 47">whether s 68 or s 79 of the judiciary act 1903 (cth) ("the judiciary act ") rendered provisions of the costs act applicable so as to authorise grant of certificate in federal jurisdiction.  constitutional law (cth)</citphrase>
<citphrase id="cp2.5">cited from="[2002] HCA 47">jurisdiction and powers of state court exercising federal jurisdiction in the trial of a federal offender</citphrase>
<citphrase id="cp2.6">cited from="[2002] HCA 47">application of the costs act</citphrase>
<citphrase id="cp2.7">cited from="[2002] HCA 47">whether the costs act picked up and applied to federal jurisdiction by force of the judiciary act</citphrase>
<citphrase id="cp2.8">cited from="[2002] HCA 47">whether any such operation would be contrary to the provisions and requirements of the constitution</citphrase>
<citphrase id="cp2.9">cited from="[2002] HCA 47">whether any such application would be inconsistent with the disposal of the constitutional matter within federal jurisdiction</citphrase>
<citphrase id="cp2.10">cited from="[2002] HCA 47">whether it would involve the purported exercise by a court of non-judicial functions incompatible with ch iii of the constitution</citphrase>
<citphrase id="cp2.11">cited from="[2002] HCA 47">whether it would be incompatible with the constitution to impose burdens on state ministers and officers and on the consolidated revenue fund of a state.</citphrase>
<citphrase id="cp3.0">cited from="[2001] HCA 1">australian securities and investments commission v edensor nominees pty ltd  courts and judges</citphrase>
<citphrase id="cp3.1">cited from="[2001] HCA 1">federal courts</citphrase>
<citphrase id="cp3.2">cited from="[2001] HCA 1">jurisdiction</citphrase>
<citphrase id="cp3.3">cited from="[2001] HCA 1">whether federal court exercising federal or state jurisdiction</citphrase>
<citphrase id="cp3.4">cited from="[2001] HCA 1">whether federal court had power to make orders pursuant to the corporations law of a state</citphrase>
<citphrase id="cp3.5">cited from="[2001] HCA 1">whether australian securities and investments commission "the commonwealth"</citphrase>
<citphrase id="cp3.6">cited from="[2001] HCA 1">whether remedies sought were "an injunction or declaration".  constitutional law (cth)</citphrase>
<citphrase id="cp3.7">cited from="[2001] HCA 1">courts</citphrase>
<citphrase id="cp3.8">cited from="[2001] HCA 1">jurisdiction</citphrase>
<citphrase id="cp3.9">cited from="[2001] HCA 1">whether federal court exercising federal or state jurisdiction</citphrase>
<citphrase id="cp3.10">cited from="[2001] HCA 1">whether australian securities and investments commission "the commonwealth".</citphrase>
<citphrase id="cp8.0">citing from="[2008] HCA 59">priestley v godwin  administrative law</citphrase>
<citphrase id="cp8.1">citing from="[2008] HCA 59">practice and procedure</citphrase>
<citphrase id="cp8.2">citing from="[2008] HCA 59">prerogative writs</citphrase>
<citphrase id="cp8.3">citing from="[2008] HCA 59">proceedings collateral to application under s 13(1) of the administrative decisions (judicial review) act 1977 (cth)</citphrase>
<citphrase id="cp8.4">citing from="[2008] HCA 59">application by respondent for summary dismissal</citphrase>
<citphrase id="cp8.5">citing from="[2008] HCA 59">application for judge's recusal</citphrase>
<citphrase id="cp8.6">citing from="[2008] HCA 59">allegations of bias</citphrase>
<citphrase id="cp8.7">citing from="[2008] HCA 59">validity of s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp8.8">citing from="[2008] HCA 59">validity of o 20 r 5 of the federal court rules .</citphrase>
<citphrase id="cp9.0">citing from="[2008] FCA 1529">constitutional law</citphrase>
<citphrase id="cp9.1">citing from="[2008] FCA 1529">judicial power of the commonwealth</citphrase>
<citphrase id="cp9.2">citing from="[2008] FCA 1529">validity of s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp9.3">citing from="[2008] FCA 1529">whether an impermissible intrusion into affairs of the judiciary</citphrase>
<citphrase id="cp9.4">citing from="[2008] FCA 1529">s 31a sets standard for summary dismissal</citphrase>
<citphrase id="cp9.5">citing from="[2008] FCA 1529">affects nature of the balancing act carried out by the court in exercise of judicial power</citphrase>
<citphrase id="cp9.6">citing from="[2008] FCA 1529">does not direct the court as to the manner and outcome of the exercise of its jurisdiction</citphrase>
<citphrase id="cp9.7">citing from="[2008] FCA 1529">not a bill of attainder</citphrase>
<citphrase id="cp9.8">citing from="[2008] FCA 1529">not a "commitment" or "prosecution"  statutes</citphrase>
<citphrase id="cp9.9">citing from="[2008] FCA 1529">s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp9.10">citing from="[2008] FCA 1529">interaction of o 20 r 5 of the federal court rules and s 31a</citphrase>
<citphrase id="cp9.11">citing from="[2008] FCA 1529">whether s 31a and o 20 r 5 operate to prevent the court from receiving evidence in a summary dismissal application</citphrase>
<citphrase id="cp9.12">citing from="[2008] FCA 1529">nothing in s 31a or the balance of the act to suggest that evidence cannot be admitted</citphrase>
<citphrase id="cp9.13">citing from="[2008] FCA 1529">other court rules allow or require evidence to be admitted on a summary dismissal application australian capital territory (self-government) act 1988 (cth)</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 594" id="cs0">After I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ). </sentence>
<sentence from="[2009] FCA 169" id="cs1">The Chief Justice recorded that one of the grounds on which Mr Priestley challenged the primary judge's ability to sit was an alleged breach of s 21 of the Human Rights Act 2004 of the Australian Capital Territory arising in some way out of her Honour's refusal to recuse herself after he had made allegations of bias against her. That refusal was the subject of a judgment the primary judge had delivered at an earlier time ( Priestley v Godwin (No 2) [2008] FCA 1453) and is not before me. </sentence>
<sentence from="[2008] HCA 59" id="cs2">On 25 September 2008 her Honour gave judgment dismissing the fourth disqualification application [4] .</sentence>
<sentence from="[2008] FCA 1529" id="cs3">55 The Human Rights Act has no application ( Priestley v Godwin (No 2) [2008] FCA 1453 at [17] - [18]).</sentence>
</citances>
<legistitles>
<title id="l0">HUMAN RIGHTS ACT 2004 </title>
<title id="l1">HUMAN RIGHTS ACT 2004 - SECT 5 What are human rights?</title>
<title id="l2">HUMAN RIGHTS ACT 2004 - SECT 21 Fair trial</title>
<title id="l3">HUMAN RIGHTS ACT 2004 - SECT 29 Application of pt 4</title>
<title id="l4">HUMAN RIGHTS ACT 2004 - SECT 30 Interpretation of laws and human rights</title>
<title id="l5">LEGISLATION ACT 2001 </title>
<title id="l6">LEGISLATION ACT 2001 - SECT 7 Meaning of Act generally</title>
<title id="l7">LEGISLATION ACT 2001 - SECT 13 Meaning of statutory instrument</title>
<title id="l8">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 </title>
<title id="l9">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 13 Reasons for decision may be obtained</title>
<title id="l10">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l11">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 79 Number of judges</title>
<title id="l12">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l13">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 23 Making of orders and issue of writs</title>
<title id="l14">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 31A Summary judgment</title>
<title id="l15">JUDICIARY ACT 1903 </title>
<title id="l16">JUDICIARY ACT 1903 - SECT 79 State or Territory laws to govern where applicable</title>
<title id="l17">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCA 1756">contempt of court</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 1756">injunction</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 1756">harassment of witnesses after findings of contravention of trade practices act</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1583">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1583">defendant charged with having knowingly given misleading evidence before member of australian competition and consumer commission in contravention of s 155(5)(b) of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1583">plea of guilty</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1583">considerations relevant to penalty.</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 695">you may be liable to imprisonment or to sequestration of property if</citphrase>
<citphrase id="cp3.0">cited from="[1983] FCA 61">trade practices</citphrase>
<citphrase id="cp3.1">cited from="[1983] FCA 61">notice pursuant to section 155 of the act</citphrase>
<citphrase id="cp3.2">cited from="[1983] FCA 61">validity of notice</citphrase>
<citphrase id="cp3.3">cited from="[1983] FCA 61">meaning of 'any such information'</citphrase>
<citphrase id="cp3.4">cited from="[1983] FCA 61">meaning of 'may constitute a contravention of the act'</citphrase>
<citphrase id="cp3.5">cited from="[1983] FCA 61">sufficiency of descriptions of contraventions.  trade practices act 1974 ss.45 , 48 , 155 , 163a(1)  trade practices</citphrase>
<citphrase id="cp3.6">cited from="[1983] FCA 61">trade practices act 1974 (cth)</citphrase>
<citphrase id="cp3.7">cited from="[1983] FCA 61">notice to furnish information</citphrase>
<citphrase id="cp3.8">cited from="[1983] FCA 61">validity of notice</citphrase>
<citphrase id="cp3.9">cited from="[1983] FCA 61">whether too wide</citphrase>
<citphrase id="cp3.10">cited from="[1983] FCA 61">meaning of "any such information"</citphrase>
<citphrase id="cp3.11">cited from="[1983] FCA 61">meaning of "may constitute"</citphrase>
<citphrase id="cp3.12">cited from="[1983] FCA 61">sufficiency of descriptions of contraventions</citphrase>
<citphrase id="cp3.13">cited from="[1983] FCA 61">trade practices act 1974 (cth), s 45 , 48 , 155 , 163a(1). upon being served with a notice under s. 155 of the trade practices act 1974 requiring him to furnish certain information, the applicant sought a declaration under s. 163a of the act that he was not obliged to comply with the notice. the application argued that, on the true construction of s. 155 , the information requested must be that which the chairman has reason to believe the recipient is capable of furnishing; that the words "may constitute" as used in the notice referred to a matter the constituent elements of which lie at least in part in the future; and that the notice did not sufficiently describe the matters which the notice alleged "may constitute" contraventions.</citphrase>
<citphrase id="cp4.0">cited from="[1983] HCA 9">trade practices</citphrase>
<citphrase id="cp4.1">cited from="[1983] HCA 9">trade practices commission</citphrase>
<citphrase id="cp4.2">cited from="[1983] HCA 9">powers</citphrase>
<citphrase id="cp4.3">cited from="[1983] HCA 9">notice requiring supply of information and production of documents</citphrase>
<citphrase id="cp4.4">cited from="[1983] HCA 9">failure to comply on ground that information or documents might expose person receiving notice to civil penalty</citphrase>
<citphrase id="cp4.5">cited from="[1983] HCA 9">whether privilege against exposure to penalty applicable to non-judicial proceedings</citphrase>
<citphrase id="cp4.6">cited from="[1983] HCA 9">trade practices act 1974 (cth), ss. 45 , 76 , 155 .</citphrase>
<citphrase id="cp5.0">cited from="[1979] FCA 15">trade practices</citphrase>
<citphrase id="cp5.1">cited from="[1979] FCA 15">power of commission to obtain information, documents and evidence</citphrase>
<citphrase id="cp5.2">cited from="[1979] FCA 15">notice under s. 155</citphrase>
<citphrase id="cp5.3">cited from="[1979] FCA 15">privilege against exposure to penalty</citphrase>
<citphrase id="cp5.4">cited from="[1979] FCA 15">right to challenge chairman's belief</citphrase>
<citphrase id="cp5.5">cited from="[1979] FCA 15">discovery</citphrase>
<citphrase id="cp5.6">cited from="[1979] FCA 15">declarations</citphrase>
<citphrase id="cp5.7">cited from="[1979] FCA 15">case stated</citphrase>
<citphrase id="cp5.8">cited from="[1979] FCA 15">trade practices act 1974 (cth.), ss. 155 , 163a. each of the applicants received a notice issued under s. 155 of the trade practices act 1974 from the second-named respondent requiring the furnishing of information and production of documents in relation to suspected breaches of s. 45 of the act by the addressee of the notice.  the applicants commenced proceedings under s. 163a of the act seeking declarations that the notices did not oblige the applicants to answer questions or deliver documents which might tend to expose them to a penalty, did not oblige the applicants to comply with the requirements of the notice and were void and of no effect. the applicants also sought leave to deliver interrogatories and a notice for discovery limited to the question of whether the second-named respondent had any and what reason to believe that the respondents were capable of furnishing the information or documents referred to in the notices. it was contended for the respondents that no such leave should be given and that the reasons of the second-named respondent were not examinable.  smithers j. stated a case pursuant to s. 25 (6) of the federal court of australia act 1976 for the opinion of the full court.  held: per curiam</citphrase>
<citphrase id="cp5.9">cited from="[1979] FCA 15">the applicants were lawfully required under s. 155 to answer questions, provide information or produce documents which might tend to expose them to a penalty under ss. 45 and 76 of the act. the privilege against exposure to a penalty has been abrogated by the provisions contained in s. 155.</citphrase>
<citphrase id="cp6.0">cited from="[cases] sinodisp cth">trade practices</citphrase>
<citphrase id="cp6.1">cited from="[cases] sinodisp cth">notice by commission to furnish information</citphrase>
<citphrase id="cp6.2">cited from="[cases] sinodisp cth">validity of notice</citphrase>
<citphrase id="cp6.3">cited from="[cases] sinodisp cth">application for declaration that requests improper</citphrase>
<citphrase id="cp6.4">cited from="[cases] sinodisp cth">relevance of information</citphrase>
<citphrase id="cp6.5">cited from="[cases] sinodisp cth">person to whom requests should be made</citphrase>
<citphrase id="cp6.6">cited from="[cases] sinodisp cth">trade practices act 1974 , ss. 155 , 163a. the applicant sought a declaration, pursuant to s. 163a of the trade practices act 1974 , that certain questions put to it by the respondent (the chairman of the trade practices commission) under s. 155 of the act were not proper requests to furnish information within the meaning of s. 155.</citphrase>
<citphrase id="cp7.0">citing from="[2009] FCA 395">trade practices</citphrase>
<citphrase id="cp7.1">citing from="[2009] FCA 395">sentencing</citphrase>
<citphrase id="cp7.2">citing from="[2009] FCA 395">where first defendant charged with knowingly furnishing false information contrary to s 155(5)(b) of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp7.3">citing from="[2009] FCA 395">where second defendant charged with aiding, abetting, counselling or procuring the commission of an offence</citphrase>
<citphrase id="cp7.4">citing from="[2009] FCA 395">pleas of guilty</citphrase>
<citphrase id="cp7.5">citing from="[2009] FCA 395">considerations relevant to penalty</citphrase>
<citphrase id="cp8.0">citing from="[2008] FCA 435">criminal law</citphrase>
<citphrase id="cp8.1">citing from="[2008] FCA 435">sentencing</citphrase>
<citphrase id="cp8.2">citing from="[2008] FCA 435">aiding, abetting, counselling or procuring the commission of an offence</citphrase>
<citphrase id="cp8.3">citing from="[2008] FCA 435">refusing or failing to comply with a notice</citphrase>
<citphrase id="cp8.4">citing from="[2008] FCA 435">s 155 of trade practices act 1974 (cth)</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 395" id="cs0">The maximum penalty of 12 months' imprisonment reflects Parliament's view that "the provision of false information in response to a s 155 notice is a serious offence"; see Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298 at [19] per Heerey J, see also Australian Competition and Consumer Commission v Rana [2008] FCA 374 at [50] per North J. Considerations relevant to penalty
 </sentence>
<sentence from="[2008] FCA 435" id="cs1">15 At [49] to [50] of Rana [2008] FCA 374 there is a discussion about the importance of compliance with s 155 of the Act. These reasons will not set those sections out but rely upon that discussion to inform the sentencing in this case. 6 On 17 December 2007, an application for bail was made on Micheal Rana's behalf and was refused in view of the uncertainty that he would appear to answer the charge. In circumstances described at [33] to [35] of Rana [2008] FCA 374 , the hearing of the charge was eventually listed for 22 December 2007. 16 Importantly in this case is the evidence which was given on behalf of the prosecution by Mr Small, which is described at [47] of Rana [2008] FCA 374. That evidence demonstrates the sad and pernicious effects of the offending conduct on vulnerable people. Whilst Micheal Rana in cross-examination indicated some acceptance of responsibility for that, it is not entirely clear that his attitude as expressed was entirely genuine. This is especially so when weighed against some of Micheal Rana's other answers which suggested or expressed the view that the clinics operated by the various NuEra companies were misunderstood and in fact provided soothing and valuable services to those that attended. 11 A constant theme in much of Micheal Rana's evidence was related to the influence of his father and the fact that he had both failed to respond to the notice, and also sought to thwart the processes of the Court by the filing of the nonsensical documents referred to in the reasons for judgment delivered in Rana [2008] FCA 374 , as a result of the influence of his father. At the conclusion of that evidence, the Court indicated that it may be assisted in understanding more about Micheal Rana's attitude to his wrongdoing with the assistance of an expert report. Mr Samargis obtained instructions and proceeded with the obtaining of such a report. Indeed, the report was produced in very short time.  3 The hearing of that charge was preceded by a number of directions hearings in which the Court ordered that any affidavits to be relied upon by the parties would be filed according to a timetable stipulated. Documents were filed by Micheal Rana as well as by his father, Paul Rana. The contents of those documents and the circumstances in which they were filed are set out at [6] to [37] of the reasons for judgment in Australian Competition and Consumer Commission v Rana [2008] FCA 374 ( Rana ). They should be read in these reasons as if set out in full to the extent that they relate to Micheal Rana.</sentence>
</citances>
<legistitles>
<title id="l0">CRIMES ACT 1914 </title>
<title id="l1">CRIMES ACT 1914 - SECT 4B Pecuniary penalties--natural persons and bodies corporate</title>
<title id="l2">CRIMES ACT 1914 - SECT 4K Continuing and multiple offences</title>
<title id="l3">CRIMES ACT 1914 - SECT 16 Interpretation</title>
<title id="l4">CRIMES ACT 1914 - SECT 16A Matters to which court to have regard when passing sentence etc.</title>
<title id="l5">CRIMES ACT 1914 - SECT 16E Commencement of sentences</title>
<title id="l6">CRIMES ACT 1914 - SECT 17A Restriction on imposing sentences</title>
<title id="l7">CRIMES ACT 1914 - SECT 19B Discharge of offenders without proceeding to conviction</title>
<title id="l8">CRIMES ACT 1914 - SECT 20 Conditional release of offenders after conviction</title>
<title id="l9">CRIMES ACT 1914 - SECT 20AB Additional sentencing alternatives</title>
<title id="l10">CRIMES ACT 1914 - SECT 36 Fabricating evidence</title>
<title id="l11">CRIMES ACT 1914 - SECT 52 Piracy</title>
<title id="l12">CRIMES ACT 1914 - SECT 53 Operating a pirate-controlled ship or aircraft</title>
<title id="l13">CRIMES ACT 1914 - SECT 55 Written consent of Attorney-General required</title>
<title id="l14">FEDERAL COURT RULES </title>
<title id="l15">SENTENCING ACT 1991 </title>
<title id="l16">Sentencing Act 1991 - SECT 19 Intensive correction order</title>
</legistitles>
</case>