Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1352">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1352">application for summary dismissal of proceedings under section 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1352">test to be applied</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1352">claim for damages for breach of contract and under section 82(1) of the trade practices act 1974 (cth)  assignment</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1352">assignment of choses in action</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCA 1352">claim for damages for breach of contract and under section 82(1) of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCA 1352">where claim brought by person claiming to be assignee under a contract for sale of a business to enforce rights of assignor in contract and under section 51ac and s 52 of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCA 1352">where assignor company now deregistered</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCA 1352">whether purported assignment effective</citphrase>
<citphrase id="cp0.9">cited from="[2006] FCA 1352">whether statutory claim capable of assignment  assignment</citphrase>
<citphrase id="cp0.10">cited from="[2006] FCA 1352">trade practices</citphrase>
<citphrase id="cp0.11">cited from="[2006] FCA 1352">whether claim for damages under section 82(1) of the trade practices act 1974 (cth) capable of assignment  held</citphrase>
<citphrase id="cp0.12">cited from="[2006] FCA 1352">claim for damages under s 82(1) of the trade practices act 1974 (cth) not capable of assignment; pleadings fundamentally flawed and disclosed no reasonable prospect of success; proceedings summarily dismissed  words  phrases</citphrase>
<citphrase id="cp0.13">cited from="[2006] FCA 1352">"no reasonable prospect of successfully prosecuting the proceeding"</citphrase>
<citphrase id="cp1.0">cited from="[2004] HCA 60">butcher v lachlan elder realty pty limited  trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2004] HCA 60">misleading or deceptive conduct</citphrase>
<citphrase id="cp1.2">cited from="[2004] HCA 60">sale of waterfront property</citphrase>
<citphrase id="cp1.3">cited from="[2004] HCA 60">real estate agent published brochure containing survey diagram obtained from vendor's solicitors</citphrase>
<citphrase id="cp1.4">cited from="[2004] HCA 60">survey diagram alleged to be inaccurate</citphrase>
<citphrase id="cp1.5">cited from="[2004] HCA 60">brochure contained a disclaimer by the real estate agent as to the reliability of information from other sources</citphrase>
<citphrase id="cp1.6">cited from="[2004] HCA 60">purchasers intended to develop property in reliance on the survey diagram</citphrase>
<citphrase id="cp1.7">cited from="[2004] HCA 60">whether real estate agent made a representation</citphrase>
<citphrase id="cp1.8">cited from="[2004] HCA 60">whether real estate agent engaged in misleading or deceptive conduct or conduct "likely to mislead or deceive".</citphrase>
<citphrase id="cp2.0">cited from="[1994] FCA 1222">trade practices</citphrase>
<citphrase id="cp2.1">cited from="[1994] FCA 1222">sections 52 and 75b</citphrase>
<citphrase id="cp2.2">cited from="[1994] FCA 1222">availability of claim under s.75b although corporate principal is not proceeded against</citphrase>
<citphrase id="cp2.3">cited from="[1994] FCA 1222">onus and effect of failure to call witnesses</citphrase>
<citphrase id="cp2.4">cited from="[1994] FCA 1222">difficulties of proof of damages in respect of a contravention of s. 52</citphrase>
<citphrase id="cp2.5">cited from="[1994] FCA 1222">reliance</citphrase>
<citphrase id="cp2.6">cited from="[1994] FCA 1222">alleged misstatement of "receivables" in accounts of company</citphrase>
<citphrase id="cp2.7">cited from="[1994] FCA 1222">correct accounting principles</citphrase>
<citphrase id="cp2.8">cited from="[1994] FCA 1222">accessory liability under s. 75b of a person "involved" in a contravention of s. 52</citphrase>
<citphrase id="cp2.9">cited from="[1994] FCA 1222">discussion of the knowledge required to be shown to establish such involvement</citphrase>
<citphrase id="cp2.10">cited from="[1994] FCA 1222">actual and not constructive knowledge essential</citphrase>
<citphrase id="cp2.11">cited from="[1994] FCA 1222">"wilful blindness" or shutting one's eyes to the obvious explained.</citphrase>
<citphrase id="cp3.0">cited from="[1985] HCA 65">trade practices</citphrase>
<citphrase id="cp3.1">cited from="[1985] HCA 65">consumer protection</citphrase>
<citphrase id="cp3.2">cited from="[1985] HCA 65">misleading or deceptive conduct by corporation</citphrase>
<citphrase id="cp3.3">cited from="[1985] HCA 65">liability of persons aiding, abetting, counselling or procuring or party to contravention by corporation</citphrase>
<citphrase id="cp3.4">cited from="[1985] HCA 65">whether knowledge of material facts necessary</citphrase>
<citphrase id="cp3.5">cited from="[1985] HCA 65">whether knowledge that facts constitute contravention necessary</citphrase>
<citphrase id="cp3.6">cited from="[1985] HCA 65">trade practices act 1974 (cth),ss. 52, 75b, 82</citphrase>
<citphrase id="cp5.0">citing from="[2011] FCA 448">category: no</citphrase>
<citphrase id="cp6.0">citing from="[2011] FMCA 116">industrial law</citphrase>
<citphrase id="cp6.1">citing from="[2011] FMCA 116">contract law</citphrase>
<citphrase id="cp6.2">citing from="[2011] FMCA 116">independent contractors</citphrase>
<citphrase id="cp6.3">citing from="[2011] FMCA 116">principles of agency</citphrase>
<citphrase id="cp6.4">citing from="[2011] FMCA 116">disclosed principal  ostensible authority</citphrase>
<citphrase id="cp6.5">citing from="[2011] FMCA 116">security for costs</citphrase>
<citphrase id="cp6.6">citing from="[2011] FMCA 116">parties bound by pleadings</citphrase>
<citphrase id="cp6.7">citing from="[2011] FMCA 116">summary disposal</citphrase>
<citphrase id="cp6.8">citing from="[2011] FMCA 116">distinction between "complex cases" and necessary details of pleaded case.</citphrase>
<citphrase id="cp7.0">citing from="[2010] FMCAfam 1425">family law</citphrase>
<citphrase id="cp7.1">citing from="[2010] FMCAfam 1425">de facto property</citphrase>
<citphrase id="cp7.2">citing from="[2010] FMCAfam 1425">parties merely dating</citphrase>
<citphrase id="cp7.3">citing from="[2010] FMCAfam 1425">short-term association</citphrase>
<citphrase id="cp7.4">citing from="[2010] FMCAfam 1425">summary dismissal.</citphrase>
<citphrase id="cp8.0">citing from="[2010] FMCA 919">copyright</citphrase>
<citphrase id="cp8.1">citing from="[2010] FMCA 919">application by second respondent for summary dismissal</citphrase>
<citphrase id="cp8.2">citing from="[2010] FMCA 919">second respondent sole director and shareholder of the first respondent</citphrase>
<citphrase id="cp8.3">citing from="[2010] FMCA 919">applicant's claim against the second respondent could not be described as having no reasonable prospect of success</citphrase>
<citphrase id="cp8.4">citing from="[2010] FMCA 919">keller v led technologies pty ltd</citphrase>
<citphrase id="cp8.5">citing from="[2010] FMCA 919">premature to say that the law is settled</citphrase>
<citphrase id="cp8.6">citing from="[2010] FMCA 919">application for summary dismissal dismissed</citphrase>
<citphrase id="cp8.7">citing from="[2010] FMCA 919">application by second respondent in the alternative to strike out amended statement of claim</citphrase>
<citphrase id="cp8.8">citing from="[2010] FMCA 919">amended statement of claim does not clearly articulate what each respondent is alleged to have done</citphrase>
<citphrase id="cp8.9">citing from="[2010] FMCA 919">amended statement of claim should be struck out and the claim be repleaded.</citphrase>
<citphrase id="cp9.0">citing from="[2010] WASC 147">practice and procedure</citphrase>
<citphrase id="cp9.1">citing from="[2010] WASC 147">summary judgment</citphrase>
<citphrase id="cp9.2">citing from="[2010] WASC 147">limitation period</citphrase>
<citphrase id="cp9.3">citing from="[2010] WASC 147">disputed facts</citphrase>
<citphrase id="cp9.4">citing from="[2010] WASC 147">a question which ought to be tried</citphrase>
<citphrase id="cp10.0">citing from="[2010] FCA 629">practice and procedure</citphrase>
<citphrase id="cp10.1">citing from="[2010] FCA 629">appeal from a federal magistrate's order</citphrase>
<citphrase id="cp10.2">citing from="[2010] FCA 629">federal magistrate erred in summarily dismissing the applicant's claim pursuant to s 17a of the federal magistrates act 1999 (cth)</citphrase>
<citphrase id="cp10.3">citing from="[2010] FCA 629">factual dispute between the applicant and the respondent</citphrase>
<citphrase id="cp10.4">citing from="[2010] FCA 629">not appropriate to decide the question by reference to the affidavit evidence in the absence of hearing the parties</citphrase>
<citphrase id="cp11.0">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp11.1">citing from="[2010] FMCA 389">alleged unlawful termination of employment</citphrase>
<citphrase id="cp11.2">citing from="[2010] FMCA 389">temporary absence or illness</citphrase>
<citphrase id="cp11.3">citing from="[2010] FMCA 389">non-membership of a trade union</citphrase>
<citphrase id="cp11.4">citing from="[2010] FMCA 389">filing of a complaint or participation in proceedings and recourse to competent administrative authority</citphrase>
<citphrase id="cp11.5">citing from="[2010] FMCA 389">political opinion, national extraction or social origin.  practice and procedure</citphrase>
<citphrase id="cp11.6">citing from="[2010] FMCA 389">application for summary dismissal</citphrase>
<citphrase id="cp11.7">citing from="[2010] FMCA 389">principles.  practice and procedure</citphrase>
<citphrase id="cp11.8">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp11.9">citing from="[2010] FMCA 389">alleged unlawful termination</citphrase>
<citphrase id="cp11.10">citing from="[2010] FMCA 389">onus of proof.</citphrase>
<citphrase id="cp12.0">citing from="[2010] FCA 544">practice and procedure</citphrase>
<citphrase id="cp12.1">citing from="[2010] FCA 544">summary judgment application made by respondent</citphrase>
<citphrase id="cp12.2">citing from="[2010] FCA 544">defence raised by respondent under s 123 of trade marks act 1995 (cth)</citphrase>
<citphrase id="cp12.3">citing from="[2010] FCA 544">moving party bears the onus in a summary judgment application</citphrase>
<citphrase id="cp12.4">citing from="[2010] FCA 544">consideration of the test under s 31a of federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp12.5">citing from="[2010] FCA 544">respondent must show that because of the s 123 defence, the applicant has no reasonable prospects of successfully prosecuting the proceedings</citphrase>
<citphrase id="cp12.6">citing from="[2010] FCA 544">consideration of whether the evidence reveals a real issue of fact to be resolved for the respondent's defence to succeed</citphrase>
<citphrase id="cp12.7">citing from="[2010] FCA 544">while s 31a lowers the threshold for summary judgment applications, the court must ensure that litigants are not unjustly shut out from litigating an issue that is fairly arguable</citphrase>
<citphrase id="cp12.8">citing from="[2010] FCA 544">a pivotal fact raised by the respondent's defence not established and therefore respondent failed to discharge its onus  practice and procedure</citphrase>
<citphrase id="cp12.9">citing from="[2010] FCA 544">security for costs application made by respondent</citphrase>
<citphrase id="cp12.10">citing from="[2010] FCA 544">applicant admitted to being impecunious</citphrase>
<citphrase id="cp12.11">citing from="[2010] FCA 544">security for costs opposed because applicant could not meet an order in the amount sought and that would stifle the proceedings</citphrase>
<citphrase id="cp12.12">citing from="[2010] FCA 544">staged payments found to be the best way to deal with the application</citphrase>
<citphrase id="cp13.0">citing from="[2010] FCA 155">practice and procedure</citphrase>
<citphrase id="cp13.1">citing from="[2010] FCA 155">summary dismissal of appeal pursuant to s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp14.0">citing from="[2010] FCA 69">practice and procedure</citphrase>
<citphrase id="cp14.1">citing from="[2010] FCA 69">summary dismissal of judicial review proceedings relating to child support orders made by a local court of nsw in 2005</citphrase>
<citphrase id="cp14.2">citing from="[2010] FCA 69">causes of action relied upon have no reasonable prospects of succeeding</citphrase>
<citphrase id="cp14.3">citing from="[2010] FCA 69">proceedings dismissed pursuant to s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp15.0">citing from="[2010] FMCA 5">practice and procedure</citphrase>
<citphrase id="cp15.1">citing from="[2010] FMCA 5">application to summarily dismiss proceedings</citphrase>
<citphrase id="cp15.2">citing from="[2010] FMCA 5">principles.  practice and procedure</citphrase>
<citphrase id="cp15.3">citing from="[2010] FMCA 5">application to transfer proceedings to the federal court</citphrase>
<citphrase id="cp15.4">citing from="[2010] FMCA 5">principles.  trade practices</citphrase>
<citphrase id="cp15.5">citing from="[2010] FMCA 5">alleged misleading and deceptive conduct in relation to alleged representations in native title and aboriginal heritage matters</citphrase>
<citphrase id="cp15.6">citing from="[2010] FMCA 5">whether allegations made "in trade or commerce"</citphrase>
<citphrase id="cp15.7">citing from="[2010] FMCA 5">injunction sought to restrain respondents in respect of native title and aboriginal heritage matters.</citphrase>
<citphrase id="cp16.0">citing from="[2010] FMCA 40">copyright</citphrase>
<citphrase id="cp16.1">citing from="[2010] FMCA 40">proceedings summarily dismissed on the basis of no reasonable chance of success.</citphrase>
<citphrase id="cp17.0">citing from="[2009] FCA 1500">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2009] FCA 1500">whether summary judgment pursuant to s 31a of the federal court of australia act 1976 (cth) justified</citphrase>
<citphrase id="cp17.2">citing from="[2009] FCA 1500">whether the whole or part of the respondents' cross-claim should be dismissed or struck out</citphrase>
<citphrase id="cp17.3">citing from="[2009] FCA 1500">whether interlocutory injunction should be granted</citphrase>
<citphrase id="cp17.4">citing from="[2009] FCA 1500">all applications refused</citphrase>
<citphrase id="cp18.0">citing from="[2009] FCA 1487">practice and procedure</citphrase>
<citphrase id="cp18.1">citing from="[2009] FCA 1487">application for dismissal of proceedings under s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp18.2">citing from="[2009] FCA 1487">alternatively for the statement of claim to be struck out</citphrase>
<citphrase id="cp18.3">citing from="[2009] FCA 1487">whether reasonable cause of action disclosed</citphrase>
<citphrase id="cp18.4">citing from="[2009] FCA 1487">whether court has jurisdiction</citphrase>
<citphrase id="cp18.5">citing from="[2009] FCA 1487">whether matter 'arising under any laws made by the parliament'</citphrase>
<citphrase id="cp18.6">citing from="[2009] FCA 1487">whether s 47a of the limitation act 1935 (wa) applies</citphrase>
<citphrase id="cp18.7">citing from="[2009] FCA 1487">whether causes of action statute barred    torts</citphrase>
<citphrase id="cp18.8">citing from="[2009] FCA 1487">proceedings against civil aviation safety authority (casa) and officers of casa</citphrase>
<citphrase id="cp18.9">citing from="[2009] FCA 1487">alleged negligence in performance of statutory duties</citphrase>
<citphrase id="cp18.10">citing from="[2009] FCA 1487">existence and scope of duty of care</citphrase>
<citphrase id="cp18.11">citing from="[2009] FCA 1487">whether statutory duty of care owed by casa or its officers</citphrase>
<citphrase id="cp18.12">citing from="[2009] FCA 1487">whether common law duty of care owed by casa or its officers not to cause economic loss</citphrase>
<citphrase id="cp18.13">citing from="[2009] FCA 1487">whether misfeasance by officers of casa</citphrase>
<citphrase id="cp18.14">citing from="[2009] FCA 1487">whether private right of damages available to applicants</citphrase>
<citphrase id="cp19.0">citing from="[2009] FMCA 957">human rights</citphrase>
<citphrase id="cp19.1">citing from="[2009] FMCA 957">sex discrimination act 1984</citphrase>
<citphrase id="cp19.2">citing from="[2009] FMCA 957">interim application.  practice and procedure</citphrase>
<citphrase id="cp19.3">citing from="[2009] FMCA 957">whether court has power to "dismiss" parts of points of claim under rule 13.10 of the federal magistrates court rules</citphrase>
<citphrase id="cp19.4">citing from="[2009] FMCA 957">application of order 11 rule 16 of the federal court rules to points of claim</citphrase>
<citphrase id="cp19.5">citing from="[2009] FMCA 957">application for summary dismissal of application or various claims for relief in relation to particular respondents.</citphrase>
<citphrase id="cp20.0">citing from="[2009] FMCA 936">bankruptcy</citphrase>
<citphrase id="cp20.1">citing from="[2009] FMCA 936">discretionary review of trustee's decision.  practice  procedure</citphrase>
<citphrase id="cp20.2">citing from="[2009] FMCA 936">summary dismissal</citphrase>
<citphrase id="cp20.3">citing from="[2009] FMCA 936">appropriate test.</citphrase>
<citphrase id="cp21.0">citing from="[2009] FCA 965">administrative law</citphrase>
<citphrase id="cp21.1">citing from="[2009] FCA 965">judicial review</citphrase>
<citphrase id="cp21.2">citing from="[2009] FCA 965">appeal from decision of administrative appeals tribunal</citphrase>
<citphrase id="cp21.3">citing from="[2009] FCA 965">whether first applicant a proper party and capable of commencing proceedings</citphrase>
<citphrase id="cp21.4">citing from="[2009] FCA 965">whether second applicant has standing to bring appeal</citphrase>
<citphrase id="cp21.5">citing from="[2009] FCA 965">whether denial of procedural fairness</citphrase>
<citphrase id="cp21.6">citing from="[2009] FCA 965">whether issue estoppel</citphrase>
<citphrase id="cp21.7">citing from="[2009] FCA 965">whether right to damages for alleged breaches of social security act 1991</citphrase>
<citphrase id="cp23.0">citing from="[2009] FMCA 467">industrial law</citphrase>
<citphrase id="cp23.1">citing from="[2009] FMCA 467">payment in lieu of notice of termination of employment.  practice  procedure</citphrase>
<citphrase id="cp23.2">citing from="[2009] FMCA 467">no reasonable prospects of success</citphrase>
<citphrase id="cp23.3">citing from="[2009] FMCA 467">summary dismissal application</citphrase>
<citphrase id="cp23.4">citing from="[2009] FMCA 467">appropriate test.</citphrase>
<citphrase id="cp24.0">citing from="[2009] FMCA 266">trade practices</citphrase>
<citphrase id="cp24.1">citing from="[2009] FMCA 266">summary dismissal</citphrase>
<citphrase id="cp24.2">citing from="[2009] FMCA 266">recruitment agreement</citphrase>
<citphrase id="cp24.3">citing from="[2009] FMCA 266">whether instructions given to halt recruitment process</citphrase>
<citphrase id="cp24.4">citing from="[2009] FMCA 266">interpretation of emails</citphrase>
<citphrase id="cp24.5">citing from="[2009] FMCA 266">objective test.</citphrase>
<citphrase id="cp25.0">citing from="[2009] FCA 332">practice and procedure</citphrase>
<citphrase id="cp25.1">citing from="[2009] FCA 332">pleadings</citphrase>
<citphrase id="cp25.2">citing from="[2009] FCA 332">summary judgment and strike out</citphrase>
<citphrase id="cp25.3">citing from="[2009] FCA 332">requirements of 'no reasonable prospect of success'</citphrase>
<citphrase id="cp25.4">citing from="[2009] FCA 332">whether a strike out is more appropriate than summary judgment</citphrase>
<citphrase id="cp25.5">citing from="[2009] FCA 332">s 31a federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp25.6">citing from="[2009] FCA 332">o 11 r 16 federal court rules (cth)   intellectual property</citphrase>
<citphrase id="cp25.7">citing from="[2009] FCA 332">copyright</citphrase>
<citphrase id="cp25.8">citing from="[2009] FCA 332">facts necessary to give rise to a claim of conversion</citphrase>
<citphrase id="cp25.9">citing from="[2009] FCA 332">whether there is an 'infringing copy'</citphrase>
<citphrase id="cp25.10">citing from="[2009] FCA 332">s 116 copyright act 1968 (cth)   practice and procedure</citphrase>
<citphrase id="cp25.11">citing from="[2009] FCA 332">costs</citphrase>
<citphrase id="cp25.12">citing from="[2009] FCA 332">whether both parties were partially successful</citphrase>
<citphrase id="cp25.13">citing from="[2009] FCA 332">whether costs should be awarded to a party</citphrase>
<citphrase id="cp26.0">citing from="[2009] FCA 274">practice and procedure</citphrase>
<citphrase id="cp26.1">citing from="[2009] FCA 274">consideration of an application for dismissal of a part of a proceeding against a second respondent pursuant to s 31a of the federal court of australia act 1976</citphrase>
<citphrase id="cp26.2">citing from="[2009] FCA 274">consideration of whether an amended statement of claim in the proceeding properly pleads material facts supporting a claim of accessorial liability in respect of contended contraventions by a corporation of provisions of the workplace relations act 1996 (cth)    employment</citphrase>
<citphrase id="cp26.3">citing from="[2009] FCA 274">consideration of the adequacy of a pleading of a claim of accessorial liability pursuant to s 728 of the workplace relations act 1996 (cth) in respect of contended contraventions by a corporation of ss 767(3) and 767 (7) of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp27.0">citing from="[2008] FMCA 1374">bankruptcy</citphrase>
<citphrase id="cp27.1">citing from="[2008] FMCA 1374">application to review decision or conduct of a trustee in the administration of a bankrupt estate</citphrase>
<citphrase id="cp27.2">citing from="[2008] FMCA 1374">sale of real estate</citphrase>
<citphrase id="cp27.3">citing from="[2008] FMCA 1374">trustee permitting asserted secured creditor to take residue of the proceeds of the sale</citphrase>
<citphrase id="cp27.4">citing from="[2008] FMCA 1374">security later undermined by decision of the supreme court in separate proceedings</citphrase>
<citphrase id="cp27.5">citing from="[2008] FMCA 1374">whether the trustee responsible for any loss to unsecured creditors considered.  practice and procedure</citphrase>
<citphrase id="cp27.6">citing from="[2008] FMCA 1374">interlocutory dismissal of application</citphrase>
<citphrase id="cp27.7">citing from="[2008] FMCA 1374">no reasonable prospect of success.</citphrase>
<citphrase id="cp28.0">citing from="[2008] FMCA 1340">human rights</citphrase>
<citphrase id="cp28.1">citing from="[2008] FMCA 1340">no reasonable prospect of success</citphrase>
<citphrase id="cp28.2">citing from="[2008] FMCA 1340">abuse of process vexatious proceeding in this and the other courts</citphrase>
<citphrase id="cp28.3">citing from="[2008] FMCA 1340">costs matter</citphrase>
<citphrase id="cp28.4">citing from="[2008] FMCA 1340">raise issue of public interest</citphrase>
<citphrase id="cp28.5">citing from="[2008] FMCA 1340">seeking orders of person benefit costs against unsuccessful applicant.</citphrase>
<citphrase id="cp29.0">citing from="[2008] FMCA 1018">human rights</citphrase>
<citphrase id="cp29.1">citing from="[2008] FMCA 1018">disability discrimination</citphrase>
<citphrase id="cp29.2">citing from="[2008] FMCA 1018">"complaint"</citphrase>
<citphrase id="cp29.3">citing from="[2008] FMCA 1018">complainant does not need to identify those sections of the relevant act on which the success of the complaint depends</citphrase>
<citphrase id="cp29.4">citing from="[2008] FMCA 1018">it is sufficient to allege than an act of unlawful discrimination has occurred</citphrase>
<citphrase id="cp29.5">citing from="[2008] FMCA 1018">the way a complaint is expressed should not be construed unduly strictly</citphrase>
<citphrase id="cp29.6">citing from="[2008] FMCA 1018">court has no jurisdiction to entertain complaints not subject to the hreoc notice of termination.  practice  procedure</citphrase>
<citphrase id="cp29.7">citing from="[2008] FMCA 1018">no reasonable prospects of success</citphrase>
<citphrase id="cp29.8">citing from="[2008] FMCA 1018">summary dismissal application</citphrase>
<citphrase id="cp29.9">citing from="[2008] FMCA 1018">appropriate test.  practice  procedure</citphrase>
<citphrase id="cp29.10">citing from="[2008] FMCA 1018">complaints of disability discrimination</citphrase>
<citphrase id="cp29.11">citing from="[2008] FMCA 1018">complaint first brought to nsw anti-discrimination board under nsw legislation cannot be brought again to hreoc under commonwealth legislation</citphrase>
<citphrase id="cp29.12">citing from="[2008] FMCA 1018">s.13(4) disability discrimination act 1992</citphrase>
<citphrase id="cp29.13">citing from="[2008] FMCA 1018">no cause of action</citphrase>
<citphrase id="cp29.14">citing from="[2008] FMCA 1018">application dismissed.  anti-discrimination act 1977 (nsw), ss.49a , 49b , 49l , 49m , 89b</citphrase>
<citphrase id="cp30.0">citing from="[2008] FMCA 984">human rights</citphrase>
<citphrase id="cp30.1">citing from="[2008] FMCA 984">disability discrimination</citphrase>
<citphrase id="cp30.2">citing from="[2008] FMCA 984">sex discrimination</citphrase>
<citphrase id="cp30.3">citing from="[2008] FMCA 984">sexual harassment</citphrase>
<citphrase id="cp30.4">citing from="[2008] FMCA 984">victimisation.  practice  procedure</citphrase>
<citphrase id="cp30.5">citing from="[2008] FMCA 984">no reasonable prospects of success</citphrase>
<citphrase id="cp30.6">citing from="[2008] FMCA 984">summary dismissal application</citphrase>
<citphrase id="cp30.7">citing from="[2008] FMCA 984">appropriate test</citphrase>
<citphrase id="cp30.8">citing from="[2008] FMCA 984">applicant had brought several other proceedings making similar allegations and seeking similar relief against most respondents to these proceedings</citphrase>
<citphrase id="cp30.9">citing from="[2008] FMCA 984">these proceedings vexatious and an abuse of process.  practice  procedure</citphrase>
<citphrase id="cp30.10">citing from="[2008] FMCA 984">vexatious litigant allegation</citphrase>
<citphrase id="cp30.11">citing from="[2008] FMCA 984">although these proceedings vexatious because other similar proceedings pending, the underlying claim may not be vexatious</citphrase>
<citphrase id="cp30.12">citing from="[2008] FMCA 984">criteria under the rules for finding the applicant to be a vexatious litigant not satisfied.  practice  procedure</citphrase>
<citphrase id="cp30.13">citing from="[2008] FMCA 984">application for order that publication of applicant's name be prohibited</citphrase>
<citphrase id="cp30.14">citing from="[2008] FMCA 984">criteria for such an order considered</citphrase>
<citphrase id="cp30.15">citing from="[2008] FMCA 984">application refused.</citphrase>
<citphrase id="cp31.0">citing from="[2008] FMCA 947">trade practices</citphrase>
<citphrase id="cp31.1">citing from="[2008] FMCA 947">whether conduct in trade or commence.  trade practices</citphrase>
<citphrase id="cp31.2">citing from="[2008] FMCA 947">whether conduct capable of being misleading or deceptive.  trade practices</citphrase>
<citphrase id="cp31.3">citing from="[2008] FMCA 947">unconscionable conduct</citphrase>
<citphrase id="cp31.4">citing from="[2008] FMCA 947">whether minority shareholding is a special disadvantage.  practice  procedure</citphrase>
<citphrase id="cp31.5">citing from="[2008] FMCA 947">application for summary disposal pursuant to s.17a federal magistrates court act 1999</citphrase>
<citphrase id="cp31.6">citing from="[2008] FMCA 947">principles to be applied.  practice  procedure</citphrase>
<citphrase id="cp31.7">citing from="[2008] FMCA 947">costs</citphrase>
<citphrase id="cp31.8">citing from="[2008] FMCA 947">circumstances where order for indemnity costs appropriate.</citphrase>
<citphrase id="cp32.0">citing from="[2008] FMCA 911">trade practices</citphrase>
<citphrase id="cp32.1">citing from="[2008] FMCA 911">application for summary dismissal of four causes of action</citphrase>
<citphrase id="cp32.2">citing from="[2008] FMCA 911">s.17a federal magistrates act 1999 (cth)</citphrase>
<citphrase id="cp32.3">citing from="[2008] FMCA 911">r.13.10 federal magistrates court rules</citphrase>
<citphrase id="cp32.4">citing from="[2008] FMCA 911">" no reasonable prospect of successfully prosecuting claim "</citphrase>
<citphrase id="cp32.5">citing from="[2008] FMCA 911">test to be applied</citphrase>
<citphrase id="cp32.6">citing from="[2008] FMCA 911">principles to be borne in mind</citphrase>
<citphrase id="cp32.7">citing from="[2008] FMCA 911">s.52 trade practices act 1974 (cth)</citphrase>
<citphrase id="cp32.8">citing from="[2008] FMCA 911">crown immunity</citphrase>
<citphrase id="cp32.9">citing from="[2008] FMCA 911">circumstances where crown immunity to be enjoyed by bodies other than the crown</citphrase>
<citphrase id="cp32.10">citing from="[2008] FMCA 911">whether conduct " in trade or commerce "</citphrase>
<citphrase id="cp32.11">citing from="[2008] FMCA 911">whether conduct " misleading or deceptive "</citphrase>
<citphrase id="cp32.12">citing from="[2008] FMCA 911">negligence</citphrase>
<citphrase id="cp32.13">citing from="[2008] FMCA 911">whether the conduct pleaded could be breach of a duty of care</citphrase>
<citphrase id="cp32.14">citing from="[2008] FMCA 911">causation</citphrase>
<citphrase id="cp32.15">citing from="[2008] FMCA 911">non est factum</citphrase>
<citphrase id="cp32.16">citing from="[2008] FMCA 911">contract</citphrase>
<citphrase id="cp32.17">citing from="[2008] FMCA 911">whether facts as pleaded could result in a breach of contract.</citphrase>
<citphrase id="cp33.0">citing from="[2008] FMCAfam 641">family law</citphrase>
<citphrase id="cp33.1">citing from="[2008] FMCAfam 641">binding financial agreement</citphrase>
<citphrase id="cp33.2">citing from="[2008] FMCAfam 641">setting aside.  practice  procedure</citphrase>
<citphrase id="cp33.3">citing from="[2008] FMCAfam 641">summary judgment</citphrase>
<citphrase id="cp33.4">citing from="[2008] FMCAfam 641">whether the applicant has no reasonable prospect of successfully prosecuting his claim considered.</citphrase>
<citphrase id="cp34.0">citing from="[2008] FCA 955">practice and procedure</citphrase>
<citphrase id="cp34.1">citing from="[2008] FCA 955">motions for dismissal of proceedings pursuant to federal court of australia act 1976 (cth) s 31a</citphrase>
<citphrase id="cp34.2">citing from="[2008] FCA 955">alternatively for statement of claim to be struck out</citphrase>
<citphrase id="cp34.3">citing from="[2008] FCA 955">federal court rules order 11 rule 16 or order 20 rule 2</citphrase>
<citphrase id="cp34.4">citing from="[2008] FCA 955">construction of option in contract to lease and subsequent deed of lease</citphrase>
<citphrase id="cp34.5">citing from="[2008] FCA 955">consideration of evidence of extrinsic material in aid of construction</citphrase>
<citphrase id="cp34.6">citing from="[2008] FCA 955">common intention unilateral mistake</citphrase>
<citphrase id="cp34.7">citing from="[2008] FCA 955">estoppel</citphrase>
<citphrase id="cp34.8">citing from="[2008] FCA 955">equitable estoppel</citphrase>
<citphrase id="cp34.9">citing from="[2008] FCA 955">breach of warranty</citphrase>
<citphrase id="cp34.10">citing from="[2008] FCA 955">unconscionable conduct</citphrase>
<citphrase id="cp34.11">citing from="[2008] FCA 955">ss 51aa and 51ac of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp34.12">citing from="[2008] FCA 955">misleading and deceptive conduct</citphrase>
<citphrase id="cp34.13">citing from="[2008] FCA 955">ss 6(3) and 52 trade practices act and s 10 fair trading act 1987 (wa).</citphrase>
<citphrase id="cp35.0">citing from="[2008] FCA 905">practice and procedure</citphrase>
<citphrase id="cp35.1">citing from="[2008] FCA 905">motion for summary dismissal of proceedings pursuant to s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp35.2">citing from="[2008] FCA 905">whether no reasonable prospects of successfully prosecuting the proceeding</citphrase>
<citphrase id="cp35.3">citing from="[2008] FCA 905">appropriate standard to be satisfied</citphrase>
<citphrase id="cp35.4">citing from="[2008] FCA 905">the onus on party seeking summary judgment is heavy</citphrase>
<citphrase id="cp35.5">citing from="[2008] FCA 905">motion for pleadings in statement of claim be struck out pursuant to o 11 r 16(b) of the federal court rules</citphrase>
<citphrase id="cp35.6">citing from="[2008] FCA 905">whether a pleading has a tendency to cause embarrassment in the proceeding</citphrase>
<citphrase id="cp35.7">citing from="[2008] FCA 905">where pleadings are confusing and inconsistent</citphrase>
<citphrase id="cp35.8">citing from="[2008] FCA 905">leave granted to re-plead pleadings struck out</citphrase>
<citphrase id="cp35.9">citing from="[2008] FCA 905">applicant claims misleading and deceptive conduct by the respondent and breach of contract in relation to employment</citphrase>
<citphrase id="cp36.0">citing from="[2008] FMCA 715">industrial law</citphrase>
<citphrase id="cp36.1">citing from="[2008] FMCA 715">practice  procedure</citphrase>
<citphrase id="cp36.2">citing from="[2008] FMCA 715">summary dismissal of proceedings</citphrase>
<citphrase id="cp36.3">citing from="[2008] FMCA 715">unlawful termination claim.</citphrase>
<citphrase id="cp37.0">citing from="[2008] FMCA 682">trade practices</citphrase>
<citphrase id="cp37.1">citing from="[2008] FMCA 682">misleading and deceptive conduct</citphrase>
<citphrase id="cp37.2">citing from="[2008] FMCA 682">employment contract</citphrase>
<citphrase id="cp37.3">citing from="[2008] FMCA 682">existing employee</citphrase>
<citphrase id="cp37.4">citing from="[2008] FMCA 682">summary dismissal application.</citphrase>
<citphrase id="cp38.0">citing from="[2008] FCAFC 60">practice and procedure</citphrase>
<citphrase id="cp38.1">citing from="[2008] FCAFC 60">orders for judgment for cross-respondents on part of cross-claim made under s 31a(2) of federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp38.2">citing from="[2008] FCAFC 60">balance of cross-claim remaining on foot</citphrase>
<citphrase id="cp38.3">citing from="[2008] FCAFC 60">nature of orders</citphrase>
<citphrase id="cp38.4">citing from="[2008] FCAFC 60">interlocutory or final</citphrase>
<citphrase id="cp38.5">citing from="[2008] FCAFC 60">test for determining nature of order</citphrase>
<citphrase id="cp38.6">citing from="[2008] FCAFC 60">legal effect of judgment</citphrase>
<citphrase id="cp38.7">citing from="[2008] FCAFC 60">whether judgment or order under s 31a for party on part or all of claim finally disposes rights of parties</citphrase>
<citphrase id="cp38.8">citing from="[2008] FCAFC 60">applicability of case law concerning dismissal of proceedings that are frivolous or vexatious, do not disclose a cause of action, or are an abuse of the process of the court</citphrase>
<citphrase id="cp38.9">citing from="[2008] FCAFC 60">applicability of case law concerning summary judgment under federal court rules , o 20 r 2 trade practices</citphrase>
<citphrase id="cp38.10">citing from="[2008] FCAFC 60">unconscionable conduct</citphrase>
<citphrase id="cp38.11">citing from="[2008] FCAFC 60">claim pursuant to s 51ac(1) of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp38.12">citing from="[2008] FCAFC 60">relationship between sub-ss 51ac(1) and (9)</citphrase>
<citphrase id="cp38.13">citing from="[2008] FCAFC 60">meaning of "price" in s 51ac(9)</citphrase>
<citphrase id="cp38.14">citing from="[2008] FCAFC 60">price of "supply or possible supply of goods or services"</citphrase>
<citphrase id="cp38.15">citing from="[2008] FCAFC 60">whether prices in all transactions between parties must be aggregated regardless of limited time at which conduct alleged to be unconscionable  statutory interpretation</citphrase>
<citphrase id="cp38.16">citing from="[2008] FCAFC 60">legislation</citphrase>
<citphrase id="cp38.17">citing from="[2008] FCAFC 60">interpretation and construction</citphrase>
<citphrase id="cp38.18">citing from="[2008] FCAFC 60">legislative intent behind s 31a</citphrase>
<citphrase id="cp38.19">citing from="[2008] FCAFC 60">construction of test in s 31a</citphrase>
<citphrase id="cp38.20">citing from="[2008] FCAFC 60">purposive test, acts interpretation act 1901 (cth), s 15aa</citphrase>
<citphrase id="cp38.21">citing from="[2008] FCAFC 60">legislative intent behind s 51ac</citphrase>
<citphrase id="cp38.22">citing from="[2008] FCAFC 60">whether sub-s 51ac(9) intended to provide an exception to sub-s 51ac(1)</citphrase>
<citphrase id="cp38.23">citing from="[2008] FCAFC 60">onus of proof</citphrase>
<citphrase id="cp39.0">citing from="[2008] FCA 331">extradition</citphrase>
<citphrase id="cp39.1">citing from="[2008] FCA 331">extradition act 1988 (cth)</citphrase>
<citphrase id="cp39.2">citing from="[2008] FCA 331">extradition offence</citphrase>
<citphrase id="cp39.3">citing from="[2008] FCA 331">extraditable person</citphrase>
<citphrase id="cp39.4">citing from="[2008] FCA 331">whether a warrant is "in force"</citphrase>
<citphrase id="cp39.5">citing from="[2008] FCA 331">parity of sentencing</citphrase>
<citphrase id="cp39.6">citing from="[2008] FCA 331">no reason to go behind the face of the warrant and extradition request</citphrase>
<citphrase id="cp39.7">citing from="[2008] FCA 331">extraditable person</citphrase>
<citphrase id="cp39.8">citing from="[2008] FCA 331">qualifying extradition offence</citphrase>
<citphrase id="cp39.9">citing from="[2008] FCA 331">whether magistrate informed of consent</citphrase>
<citphrase id="cp39.10">citing from="[2008] FCA 331">abuse of process</citphrase>
<citphrase id="cp40.0">citing from="[2008] FCA 37">taxation</citphrase>
<citphrase id="cp40.1">citing from="[2008] FCA 37">applications for summary judgment by applicant taxpayer</citphrase>
<citphrase id="cp40.2">citing from="[2008] FCA 37">whether original assessment is invalidated and rendered excessive by an amended assessment</citphrase>
<citphrase id="cp40.3">citing from="[2008] FCA 37">role of appeal statement</citphrase>
<citphrase id="cp40.4">citing from="[2008] FCA 37">whether commissioner's appeal statement reveals a fundamental flaw that is not capable of being cured</citphrase>
<citphrase id="cp40.5">citing from="[2008] FCA 37">whether arguable that applicant received a gst benefit from any identified scheme</citphrase>
<citphrase id="cp40.6">citing from="[2008] FCA 37">whether any gst benefit necessarily attributable to the making of a choice, election or application practice and procedure</citphrase>
<citphrase id="cp40.7">citing from="[2008] FCA 37">application for summary judgment by party that bears the burden of proof</citphrase>
<citphrase id="cp41.0">citing from="[2007] FMCA 2104">industrial law</citphrase>
<citphrase id="cp41.1">citing from="[2007] FMCA 2104">unlawful termination</citphrase>
<citphrase id="cp41.2">citing from="[2007] FMCA 2104">complaint to employer only does not satisfy criteria of s.659(2)(e)</citphrase>
<citphrase id="cp41.3">citing from="[2007] FMCA 2104">reverse onus of proof not enlivened</citphrase>
<citphrase id="cp41.4">citing from="[2007] FMCA 2104">s.793(1)(j) may not be limited to interaction with industrial associations</citphrase>
<citphrase id="cp41.5">citing from="[2007] FMCA 2104">discussion of objects clauses</citphrase>
<citphrase id="cp41.6">citing from="[2007] FMCA 2104">discussion of whether workcover is a "person or body having the capacity under an industrial law" to seek compliance with that law</citphrase>
<citphrase id="cp41.7">citing from="[2007] FMCA 2104">discussion of whether provisions of the occupational health and safety act 2000 (nsw) may be industrial laws</citphrase>
<citphrase id="cp41.8">citing from="[2007] FMCA 2104">summary dismissal application not frivolous and vexatious only because dismissal not sought below in the australian industrial relations commission.  practice and procedure</citphrase>
<citphrase id="cp41.9">citing from="[2007] FMCA 2104">no reasonable prospects of success</citphrase>
<citphrase id="cp41.10">citing from="[2007] FMCA 2104">summary dismissal application</citphrase>
<citphrase id="cp41.11">citing from="[2007] FMCA 2104">appropriate test</citphrase>
<citphrase id="cp41.12">citing from="[2007] FMCA 2104">discussion of "frivolous and vexatious"</citphrase>
<citphrase id="cp41.13">citing from="[2007] FMCA 2104">application in a case not out of time if proceedings still on foot</citphrase>
<citphrase id="cp41.14">citing from="[2007] FMCA 2104">grant of interim relief to applicant inappropriate while application to summarily dismiss proceedings pending.  practice and procedure</citphrase>
<citphrase id="cp41.15">citing from="[2007] FMCA 2104">disqualification application</citphrase>
<citphrase id="cp41.16">citing from="[2007] FMCA 2104">refusal</citphrase>
<citphrase id="cp41.17">citing from="[2007] FMCA 2104">allegations of bias not made out.</citphrase>
<citphrase id="cp42.0">citing from="[2007] FMCA 1360">administrative law</citphrase>
<citphrase id="cp42.1">citing from="[2007] FMCA 1360">summary dismissal</citphrase>
<citphrase id="cp42.2">citing from="[2007] FMCA 1360">no reasonable prospect of success</citphrase>
<citphrase id="cp42.3">citing from="[2007] FMCA 1360">abuse of process.</citphrase>
<citphrase id="cp44.0">citing from="[2007] FMCA 1024">trade practices</citphrase>
<citphrase id="cp44.1">citing from="[2007] FMCA 1024">passing off</citphrase>
<citphrase id="cp44.2">citing from="[2007] FMCA 1024">summary disposal</citphrase>
<citphrase id="cp44.3">citing from="[2007] FMCA 1024">receipt of additional evidence after hearing concluded.</citphrase>
<citphrase id="cp45.0">citing from="[2007] FMCA 828">trade practices</citphrase>
<citphrase id="cp45.1">citing from="[2007] FMCA 828">passing off</citphrase>
<citphrase id="cp45.2">citing from="[2007] FMCA 828">summary judgement.  evidence act 1995 , sub-ss.190(3), 190(4)</citphrase>
<citphrase id="cp46.0">citing from="[2007] FCA 880">practice and procedure</citphrase>
<citphrase id="cp46.1">citing from="[2007] FCA 880">an application is not a pleading</citphrase>
<citphrase id="cp46.2">citing from="[2007] FCA 880">purported statement of claim struck out for failure to comply with requirements for pleadings  summary judgment</citphrase>
<citphrase id="cp47.0">citing from="[2007] FCA 511">income tax</citphrase>
<citphrase id="cp47.1">citing from="[2007] FCA 511">commissioner published guidelines to effect that he would concede confidentiality in respect of, and deny himself access to, certain advising papers of external accountants, unless he or an officer of a certain rank of the australian taxation office ("ato") should decide that there were "exceptional circumstances"</citphrase>
<citphrase id="cp47.2">citing from="[2007] FCA 511">in proceedings before the court, being appeals under part ivc of the taxation administration act 1953 (cth), taxpayers gave discovery, and claimed that certain documents discovered were covered by the "accountants' concession" within the guidelines</citphrase>
<citphrase id="cp47.3">citing from="[2007] FCA 511">officer of appropriate rank within the ato decided that there were exceptional circumstances, and approved of access to the documents</citphrase>
<citphrase id="cp47.4">citing from="[2007] FCA 511">different ato officer caused a notice to produce the documents to issue to taxpayers</citphrase>
<citphrase id="cp47.5">citing from="[2007] FCA 511">taxpayers issued this present proceeding challenging the senior officer's decision allowing access, under s 5 of the administrative decisions (judicial review) act 1977 (cth) ("ad(jr) act") and under s 39b(1) and (1a) of the judiciary act 1903 (cth) (" judiciary act ")</citphrase>
<citphrase id="cp47.6">citing from="[2007] FCA 511">application for summary dismissal of proceeding based on suggested incompetency of present application</citphrase>
<citphrase id="cp47.7">citing from="[2007] FCA 511">whether decision to allow access was a "decision of an administrative character made ... under an enactment"</citphrase>
<citphrase id="cp47.8">citing from="[2007] FCA 511">whether guidelines were "an enactment"</citphrase>
<citphrase id="cp47.9">citing from="[2007] FCA 511">scope of "matter ... arising under any laws made by the parliament" within s 39b(1a)(c) of judiciary act</citphrase>
<citphrase id="cp47.10">citing from="[2007] FCA 511">test for summary dismissal under s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp47.11">citing from="[2007] FCA 511">meaning of "no reasonable prospect of success"</citphrase>
<citphrase id="cp47.12">citing from="[2007] FCA 511">held</citphrase>
<citphrase id="cp48.0">citing from="[2007] FMCA 157">copyright</citphrase>
<citphrase id="cp48.1">citing from="[2007] FMCA 157">alleged breaches of copyright in adult films and confidential customer lists</citphrase>
<citphrase id="cp48.2">citing from="[2007] FMCA 157">alleged breach of confidence in the lists.practice and procedure</citphrase>
<citphrase id="cp48.3">citing from="[2007] FMCA 157">summary judgment</citphrase>
<citphrase id="cp48.4">citing from="[2007] FMCA 157">whether the respondents have a reasonable prospect of successfully defending the claims considered.</citphrase>
<citphrase id="cp49.0">citing from="[2007] FMCA 145">industrial law</citphrase>
<citphrase id="cp49.1">citing from="[2007] FMCA 145">australian workplace agreement</citphrase>
<citphrase id="cp49.2">citing from="[2007] FMCA 145">duress</citphrase>
<citphrase id="cp49.3">citing from="[2007] FMCA 145">not duress merely because australian workplace agreement a condition of engagement.practice and procedure</citphrase>
<citphrase id="cp49.4">citing from="[2007] FMCA 145">summary dismissal of proceedings</citphrase>
<citphrase id="cp49.5">citing from="[2007] FMCA 145">no reasonable prospect of success.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCA 448" id="cs0">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';

(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. </sentence>
<sentence from="[2011] FMCA 116" id="cs1"/>
<sentence from="[2010] FMCAfam 1425" id="cs2">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 , Jacobson J summarised the conclusions in Boston Commercial as follows at [30]: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened. </sentence>
<sentence from="[2010] FMCA 919" id="cs3">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2010] WASC 147" id="cs4">It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, O 34 and O 34B of the Federal Court Rules (Cth). ...

 A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has 'no reasonable prospect of success': see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32] . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim [127], [130].
 </sentence>
<sentence from="[2010] FCA 629" id="cs5">The Federal Magistrate considered the circumstances in which a Court ought to exercise the power sought to be exercised by the respondent referring to an earlier decision of his own which he considered a decision of the Full Court of this Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 and a later decision of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. He accepted that where a real issue of fact existed such as to preclude summary judgment the Court should draw all reasonable inferences in favour of the non-moving party citing Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (Formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 and Boston Commercial Services Pty Ltd [2006] FCA 1352 ; 236 ALR 720. He referred to a decision of mine in Rana v Commonwealth of Australia [2008] FCA 907 where I said that notwithstanding that the purpose of s 31A of the Federal Court of Australia Act 1976 (Cth) was to relax the test relating to summary dismissal, the Court still needed to be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding. </sentence>
<sentence from="[2010] FMCA 389" id="cs6">However, because it was the first time the pleadings had been "subjected to curial scrutiny" Tracey J determined that the "preferable course" was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J. 27. In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30: "The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31] - [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.</sentence>
<sentence from="[2010] FCA 544" id="cs7">Put in context, that means establishing that, because of this defence, Noble has no reasonable prospects of successfully prosecuting these proceedings. To make good this defence, Tianjian has to establish, as a fact, that all of its uses of Noble's trade marks after 12 August 2009 involved boats to which Noble's trade marks were applied before that date. Put another way, if the pleadings, affidavits and other evidence produced in relation to Tianjian's summary judgment application reveal that there is a real issue of fact that has to be resolved for Tianjian's defence to succeed, it cannot be said that Noble's claim has no reasonable prospects of success: see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2007) 236 ALR 720; [2006] FCA 1352 (" Boston Commercial ") at [44] per Rares J, Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J, Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (In liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [32] per Jacobsen J and Jefferson Ford at [130] per Gordon J. </sentence>
<sentence from="[2010] FCA 155" id="cs8">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';
 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.

 See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

 </sentence>
<sentence from="[2010] FCA 69" id="cs9">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';
 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

 </sentence>
<sentence from="[2010] FMCA 5" id="cs10">In Dandaven v Harbeth Holdings Pty Ltd [25] the Federal Court summarised the relevant principles applicable to a summary dismissal application as follows: Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) [2006] FCA [2006] FCA 1352 ; 1352 ; 70 IPR 146 at [42] ---[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. [26] </sentence>
<sentence from="[2010] FMCA 40" id="cs11">One such principle is that the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success; d) The trial Court's decision to grant summary judgment is to be made as a question of law, not as the exercise of a discretion; e) Where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success. A real issue of law does not necessarily preclude summary judgment; and f) In determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences --- but only reasonable inferences --- in favour of the non-moving party. (Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liquidation) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at (30); Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at (45). In relation to this final principle His Honour went on to say: "I emphasise "reasonable" because it is on this point that the lowering of the bar affected by s.31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the Court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.</sentence>
<sentence from="[2009] FCA 1500" id="cs12">I agree with the helpful summary of the relevant principles given by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 where, at [5] and [6] of his Honour's Reasons, his Honour said:

 Section 31A of the Act

 Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] . Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:

 (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
 (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
 (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
 (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
 (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';
 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

 </sentence>
<sentence from="[2009] FCA 1487" id="cs13">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';

 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

 </sentence>
<sentence from="[2009] FMCA 957" id="cs14">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 in referring to the principles relevant to summary dismissal under s.31A of the Federal Court of Australia Act (see Rares J in Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720 ; [2006] FCA 1352 at [31] --- [48]) Jacobson J stated at [32] --- [33]: ... summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing; Boston Commercial at [38], [48]. It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant. </sentence>
<sentence from="[2009] FMCA 936" id="cs15">Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] in the following terms: In assessing whether there are reasonable prospects of success, the court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2009] FCA 965" id="cs16">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';

 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.
 </sentence>
<sentence from="[2009] FCA 612" id="cs17">It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';

(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. </sentence>
<sentence from="[2009] FMCA 467" id="cs18">Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant. </sentence>
<sentence from="[2009] FMCA 266" id="cs19">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2009] FCA 332" id="cs20">The application of O 11 r 16 should now be considered in the light of the principles discussed in relation to s 31A: see Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 at [11], namely that a proceeding need not be hopeless or bound to fail before the Court can strike out a pleading or part of a pleading. In deciding whether to strike out, the Court must have regard to the adequacy of the pleading and must take the evidence at its highest. That is, the Court must assess the pleadings as if the facts alleged are true: see ACCC v Alice Car  Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997). The Court should err on the side of striking out rather than giving summary judgment where the underlying complaint of a pleading supports a reasonable cause of action, although the pleading itself has deficiencies: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [1] . ISSUES NOW AGREED
 Quantum of Pecuniary relief
 </sentence>
<sentence from="[2009] FCA 274" id="cs21"/>
<sentence from="[2008] FMCA 1374" id="cs22">Further support for the approach taken by Wilcox J can be found in Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 (decided on 15 September 2006) at [9]-[11] per Moore J and Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 (decided 28 April 2006) at [6] per Heerey J. Conversely, support for the approach taken by Rares J can be found in Australian Inernational Pilots Assn v Qantas Airways Ltd [2006] FCA 441 at [23] (decided on 9 November 2006) per Tracey J. The authorities were reviewed by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 (decided 2 November 2006) at [30]-[33] where His Honour said: ... The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] --- [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.</sentence>
<sentence from="[2008] FMCA 1340" id="cs23">There is no evidence that could be reasonably believed which would enable the applicant to succeed at a final hearing. The only reasonable conclusion is that the applications should be summarily dismissed. Commonwealth Bank v ACN 000 247 601 Pty Ltd [2006] FCA 1416 per Justice Jacobson at [45]. The Court orders that the applications, as amended, in
SYG 2109 of 2006 and SYG 655 of 2007 are summarily dismissed pursuant to r.13 and judgment is given to each Respondent pursuant to s.17A(1) of the Federal Magistrates Act 1999 (the "Act"). The applicant filed a document on 19 May 2008 setting out the claims made by her. However, because it was the first time the pleadings had been "subjected to curial scrutiny" Tracey J determined that the "preferable course" was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J.
 27. In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30: "The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31] - [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.</sentence>
<sentence from="[2008] FMCA 1018" id="cs24">Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened. </sentence>
<sentence from="[2008] FMCA 984" id="cs25">Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant. See also Rogers v Asset Loan Co Pty Ltd  Ors [2007] FCA 195. </sentence>
<sentence from="[2008] FMCA 947" id="cs26">Therefore, to the extent that previous decisions of the Federal Court may be understood as suggesting that s 31A confers a general discretion (eg Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ), such a construction of the statutory language is rejected. [130] A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32] . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. [131] By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. A comprehensive review of the relevant authorities was undertaken by Driver FM in Vivid Entertainment LLC  Ors v Digital Sinema Australia Pty Ltd  Ors [2007] FMCA 157. After reviewing relevant authorities including Vans, Inc v offprice.com.au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia [2006] FCA 1352 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Commonwealth Bank of Australia v CAN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 and Hicks v Ruddock [2007] FCA 299 Driver FM at [30] preferred the approach of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia . </sentence>
<sentence from="[2008] FMCA 911" id="cs27">One such principle is that the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success; The trial Court's decision to grant summary judgment is to be made as a question of law, not as the exercise of a discretion; Where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success. A real issue of law does not necessarily preclude summary judgment; and In determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences --- but only reasonable inferences --- in favour of the non-moving party. ( Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liquidation) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at (30); Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at (45).
In relation to this final principle His Honour went on to say:

 "I emphasise "reasonable" because it is on this point that the lowering of the bar affected by s.31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the Court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.</sentence>
<sentence from="[2008] FMCAfam 641" id="cs28">130. A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32] . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. 131. Even under the earlier, different and more stringent test, "argument, perhaps even of an extensive kind" was permitted "to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed": General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly. 132 I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30] ; Boston Commercial Services at [45]. I emphasize "reasonable" because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.</sentence>
<sentence from="[2008] FCA 955" id="cs29">6 Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:

 (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;

 (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;

 (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;

 (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;

 (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success';

 (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;

 (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;

 (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.

See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. .

 </sentence>
<sentence from="[2008] FCA 905" id="cs30">8 The approach of Rares J in Boston Commercial was adopted by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq. ) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 where his Honour said at [30] --- [33]:
 '[30] ... The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] --- [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

 • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.</sentence>
<sentence from="[2008] FMCA 715" id="cs31">However, because it was the first time the pleadings had been "subjected to curial scrutiny" Tracey J determined that the "preferable course" was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J.
 27. In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30: "The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31] - [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.</sentence>
<sentence from="[2008] FMCA 682" id="cs32">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2008] FCAFC 60" id="cs33">132 I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30] ; Boston Commercial Services at [45]. I emphasize "reasonable" because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference. 130 A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44]. So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32] . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.</sentence>
<sentence from="[2008] FCA 331" id="cs34">56 In Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 Jacobson J helpfully summarised the principles to be applied to s 31A:

 [30] ...The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] ---[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:
 * In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. * There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. * Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. * Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2008] FCA 37" id="cs35">12 The Commissioner submits that the application is misconceived. In order to succeed the Court must be satisfied that the Commissioner has no reasonable prospect of successfully defending the proceeding (s 31A(1)(b) Federal Court of Australia Act 1976 (Cth)), although a defence need not be hopeless or bound to fail for it to have no reasonable prospect of success (s 31A(3)). It is clear enough that s 31A is wider than the previous regime for summary judgment had become. Counsel cited a number of decisions that have discussed this provision --- the latest being Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] per Jacobson J and Hicks v Ruddock (2007) 156 FCR 574 at [13] per Tamberlin J. However, limited assistance is to be gained from other decisions. "No reasonable prospect of successfully defending the proceeding" is a statutory phrase that does not permit or require paraphrase. Whilst the bar may be lower than it was, it still requires a considerable leap.</sentence>
<sentence from="[2007] FMCA 2104" id="cs36">Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited [2006] FCA 1416 at [30] in the following terms: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant. </sentence>
<sentence from="[2007] FMCA 1360" id="cs37">The question of the precise meaning of s.31A of the FCA Act and s.17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s.31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.</sentence>
<sentence from="[2007] FCA 1308" id="cs38">11 Mr Walsh argued that in applying the test for entering judgment as he did under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) his Honour erred. He said that his Honour should have found that there would be reasonable prospects of Mr Walsh's claim succeeding if there were evidence which might reasonably be believed so as to enable him to succeed at the final hearing. This is a paraphrase made by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] of the ratio decidendi of my decision in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at 153-157 [31] - [45] . The principle which is involved in this respect is one that identifies whether there was evidence upon which a trial judge could reasonably find for a plaintiff (or defendant if it is the defendant who is resisting the summary decision). Unless that evidence is so negligible in character as to amount only to a scintilla, a judge should not direct a jury or himself or herself to find a verdict for the other side. Once evidence could have an ambivalent character, prior to final determination at a trial, then as a matter of law there are reasonable prospects of success within the meaning of s 31A: Boston 70 IPR at 156-157 [43]. </sentence>
<sentence from="[2007] FMCA 1024" id="cs39">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2007] FMCA 828" id="cs40">In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30], Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows: In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. </sentence>
<sentence from="[2007] FCA 880" id="cs41">53 The principles recently stated by judges of this Court concerning the application of s 31A of the Federal Court Act are summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] as follows:

 'The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd 1352 at [31] --- [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

 • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

 • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

 • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

 • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. ' </sentence>
<sentence from="[2007] SASC 151" id="cs42">[59] (2007) 70 IPR 146 , [2006] FCA 1352. [60] Ibid at 157 [45]. See also Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (In Liquidation)  Ors [2006] FCA 1416 at [30] , Jacobson J; Australian  International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 at [23] , Tracey J; White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [45] --- [60], Lindgren J. [61] Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 70 IPR 146 at 158, [2006] FCA 1352 [47] --- [48]. [62] (2006) 150 IR 471 , [2006] FCA 458. Chapman  Chapman v Australian Broadcasting Corporation [2000] SASC 146 ; (2000) 77 SASR 181 ; Bernstrom v National Australia Bank Limited [2002] QCA 231 ; [2003] 1 Qd R 469 ; Swain v Hillman [2001] 1 All ER 91 ; Deputy Commissioner for Taxation v Salcedo [2005] QCA 227 ; [2005] 2 QdR 232 ; The State of South Australia and the Australian Formula One Grand Prix Board v The Corporation of the Town of Hindmarsh, unreported, 10 March 1993, Judgment No S3841; Coombes and Barei Pty Ltd v Lincolne Scott Australia Pty Ltd and Anor, unreported, 28 February 1997, Judgment no S6045; Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2007) 70 IPR 146 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; [2006] FCA 458 ; (2006) 150 IR 471 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock  Ors (2007) 156 FCR 574 ; Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12 ; 54 (1936) CLR 614 ; Norman v Federal Commissioner of Taxation [1963] HCA 21 ; (1963) 109 CLR 9 ; Palette Shoes Pty Ltd (in liquidation) v Krohn (1937) 58 CLR 1 ; In Re Lind. Industrials Finance Syndicate, Limited v Lind [1915] 2 Ch 345 , discussed. Macks v Tucker  Ors  QBE Insurance (Australia) Ltd [2006] SASC 272 ; Egan v Commonwealth Minister for Transport (1976) 14 SASR 445 ; Settlement Wine Co Pty Ltd v National  General Insurance Co Ltd (1988) LSJS 398 ; Settlement Wine Co Pty Ltd v National  General Insurance Co Ltd (1988) 146 LSJS 150 ; Lawrence v Griffiths  Anor (1987) 47 SASR 455 ; Bellas v Kipouros (1974) 8 SASR 418 ; Wicklow Enterprises Pty Ltd v Doysal Pty Ltd and the Registrar-General (1985) 124 LSJS 225 ; Adelaide Steamship Industries Pty Ltd v The Commonwealth of Australia (1974) 8 SASR 435 ; Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd (2005) 238 LSJS 93 ; Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224 ; [2003] 1 Qd R 259 ; Smith v Williams  Ors [2005] QSC 267 ; Club LaBourse Travel Pty Ltd v CLB International Pty Ltd  Ors [2005] QSC 380 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (In Liq)  Ors [2006] FCA 1416 ; Australian  International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; Booth v Commissioner of Taxation [1987] HCA 61 ; (1987) 164 CLR 159 ; McIntyre v Gye (1994) 51 FCR 472 ; Ford  Lee, "Principles of the Law of Trusts"; Meagher Gummow and Lehane, "Equity Doctrines  Remedies", 4th edition, 2002, considered.

 JT NOMINEES PTY LTD v MACKS
 [2007] SASC 151

 Civil

 BLEBY J:

 Introduction

 By his Will, William Wigham McGregor bequeathed, so far as is material, a one half interest in his residuary estate to his wife, Joan McGregor, for her life or until her remarriage, with remainder over such of his children as were living at the time of his death in equal shares. There were two sons who qualified, one of whom was James Alistair McGregor ("McGregor").</sentence>
<sentence from="[2007] FCA 511" id="cs43">Third, while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them. </sentence>
<sentence from="[2007] FMCA 157" id="cs44">The authorities were reviewed by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 (decided 2 November 2006) at [30]-[33] where His Honour said:

 ...</sentence>
<sentence from="[2007] FMCA 145" id="cs45">In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30:

 "The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31] - [48].</sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 31A Summary judgment</title>
<title id="l2">TRADE PRACTICES ACT 1974 </title>
<title id="l3">TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 52 Misleading or deceptive conduct.</title>
<title id="l4">FEDERAL COURT RULES 1979 </title>
<title id="l5">FAIR TRADING ACT 1987 </title>
<title id="l6">FAIR TRADING ACT 1987 - SECT 42 Reference of certain questions to Products Safety Committee</title>
<title id="l7">LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 </title>
<title id="l8">LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 - SECT 5 Proceedings against and contribution between joint and several tort-feasors</title>
</legistitles>
</case>