Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1239">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1239">service of originating process out of jurisdiction</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1239">cause of action based on breach of contract governed by the laws of western australia</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1239">breach in thailand</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1239">contract claim associated with claims against other parties for misleading or deceptive conduct in contravention of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCA 1239">claims based on accessorial liability in relation to such contraventions</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCA 1239">contract claim within accrued jurisdiction</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCA 1239">order 8 applicable</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCA 1239">prima facie case made out</citphrase>
<citphrase id="cp0.9">cited from="[2006] FCA 1239">leave to serve out of the jurisdiction</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 458">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 458">strikeout application</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 458">whether s 31a federal court of australia act 1976 (cth) applies to proceedings commenced before operation of section</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 458">termination of employment</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 458">breach of contract claims</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCA 458">whether subsequent grievance procedure formed part of contract of employment and applied to applicant</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCA 458">whether statements made at time of termination made in trade or commerce</citphrase>
<citphrase id="cp1.7">cited from="[2006] FCA 458">whether unconscionable</citphrase>
<citphrase id="cp1.8">cited from="[2006] FCA 458">whether, if federal claims struck out, jurisdiction for defamation claim</citphrase>
<citphrase id="cp2.0">cited from="[1964] HCA 69">practice</citphrase>
<citphrase id="cp2.1">cited from="[1964] HCA 69">summary power to terminate action</citphrase>
<citphrase id="cp2.2">cited from="[1964] HCA 69">principles applicable</citphrase>
<citphrase id="cp2.3">cited from="[1964] HCA 69">inherent jurisdiction</citphrase>
<citphrase id="cp2.4">cited from="[1964] HCA 69">jurisdiction under rule of court</citphrase>
<citphrase id="cp2.5">cited from="[1964] HCA 69">high court rules, o. 26, r. 18.  patents</citphrase>
<citphrase id="cp2.6">cited from="[1964] HCA 69">invention</citphrase>
<citphrase id="cp2.7">cited from="[1964] HCA 69">use for services of commonwealth or state</citphrase>
<citphrase id="cp2.8">cited from="[1964] HCA 69">"authority of the state"</citphrase>
<citphrase id="cp2.9">cited from="[1964] HCA 69">commissioner for railways</citphrase>
<citphrase id="cp2.10">cited from="[1964] HCA 69">construction of carriages for use in state railway system</citphrase>
<citphrase id="cp2.11">cited from="[1964] HCA 69">"services of the state"</citphrase>
<citphrase id="cp2.12">cited from="[1964] HCA 69">written authority to use invention</citphrase>
<citphrase id="cp2.13">cited from="[1964] HCA 69">when contract itself sufficient authority</citphrase>
<citphrase id="cp2.14">cited from="[1964] HCA 69">patents act 1952-1960 (cth), ss. 125, 132*.</citphrase>
<citphrase id="cp3.0">cited from="[1949] HCA 1">workers' compensation</citphrase>
<citphrase id="cp3.1">cited from="[1949] HCA 1">injury by accident arising out of or in course of employment</citphrase>
<citphrase id="cp3.2">cited from="[1949] HCA 1">death of worker</citphrase>
<citphrase id="cp3.3">cited from="[1949] HCA 1">negligence of employer</citphrase>
<citphrase id="cp3.4">cited from="[1949] HCA 1">option of dependants to apply for compensation or take other proceedings</citphrase>
<citphrase id="cp3.5">cited from="[1949] HCA 1">award of compensation obtained by widow on behalf of herself and children</citphrase>
<citphrase id="cp3.6">cited from="[1949] HCA 1">effect of award as barring claim by dependants under lord campbell's act</citphrase>
<citphrase id="cp3.7">cited from="[1949] HCA 1">workers' compensation acts 1928</citphrase>
<citphrase id="cp3.8">cited from="[1949] HCA 1">1946 (no. 3806</citphrase>
<citphrase id="cp3.9">cited from="[1949] HCA 1">no. 5128) (vict.)*</citphrase>
<citphrase id="cp3.10">cited from="[1949] HCA 1">wrongs act 1928 (no. 3807) (vict.), part iii.</citphrase>
<citphrase id="cp3.11">cited from="[1949] HCA 1">the 1946 workers' compensation rules, rr. 8, 81.*  practice</citphrase>
<citphrase id="cp3.12">cited from="[1949] HCA 1">supreme court (vict.)</citphrase>
<citphrase id="cp3.13">cited from="[1949] HCA 1">dismissal of action</citphrase>
<citphrase id="cp3.14">cited from="[1949] HCA 1">abuse of process</citphrase>
<citphrase id="cp3.15">cited from="[1949] HCA 1">inherent jurisdiction</citphrase>
<citphrase id="cp3.16">cited from="[1949] HCA 1">rules of the supreme court (vict.), order xxv., rr. 2, 4.</citphrase>
<citphrase id="cp4.0">citing from="[2011] FCA 448">category: no</citphrase>
<citphrase id="cp5.0">citing from="[2011] FMCA 144">human rights</citphrase>
<citphrase id="cp5.1">citing from="[2011] FMCA 144">alleged racial discrimination</citphrase>
<citphrase id="cp5.2">citing from="[2011] FMCA 144">application by portuguese community organisation concerning renewal of community broadcasting licence.  practice and procedure</citphrase>
<citphrase id="cp5.3">citing from="[2011] FMCA 144">application in a case for summary dismissal of the application</citphrase>
<citphrase id="cp5.4">citing from="[2011] FMCA 144">whether no reasonable prospects of success</citphrase>
<citphrase id="cp5.5">citing from="[2011] FMCA 144">whether frivolous or vexatious or an abuse of process</citphrase>
<citphrase id="cp5.6">citing from="[2011] FMCA 144">summary dismissal or strike out.  practice and procedure</citphrase>
<citphrase id="cp5.7">citing from="[2011] FMCA 144">application for leave for president of incorporated association to appear in application in a case</citphrase>
<citphrase id="cp5.8">citing from="[2011] FMCA 144">association a not-for-profit community organisation.</citphrase>
<citphrase id="cp6.0">citing from="[2010] FCA 1431">corporations</citphrase>
<citphrase id="cp6.1">citing from="[2010] FCA 1431">summary judgment</citphrase>
<citphrase id="cp6.2">citing from="[2010] FCA 1431">breach of directors' duties</citphrase>
<citphrase id="cp6.3">citing from="[2010] FCA 1431">application to amend defence on ground of mitigation</citphrase>
<citphrase id="cp6.4">citing from="[2010] FCA 1431">application deficient</citphrase>
<citphrase id="cp7.0">citing from="[2010] FCA 919">trade practices</citphrase>
<citphrase id="cp7.1">citing from="[2010] FCA 919">alleged third line forcing by telecommunications companies ( telcos )</citphrase>
<citphrase id="cp7.2">citing from="[2010] FCA 919">telcos allegedly offered to give (and gave) call credits on the condition that the customer would lease (and leased) equipment from a third party finance company</citphrase>
<citphrase id="cp7.3">citing from="[2010] FCA 919">telcos allegedly chose the finance company from a panel</citphrase>
<citphrase id="cp7.4">citing from="[2010] FCA 919">whether "another person" includes the plural</citphrase>
<citphrase id="cp7.5">citing from="[2010] FCA 919">whether "another person" requires specified person/s</citphrase>
<citphrase id="cp7.6">citing from="[2010] FCA 919">whether finance companies were knowingly concerned in telcos' contraventions</citphrase>
<citphrase id="cp7.7">citing from="[2010] FCA 919">essential elements of the contravention</citphrase>
<citphrase id="cp7.8">citing from="[2010] FCA 919">knowledge of telcos' business method and of condition that equipment must be leased from a specified finance company or companies</citphrase>
<citphrase id="cp7.9">citing from="[2010] FCA 919">whether bundle was a single package</citphrase>
<citphrase id="cp7.10">citing from="[2010] FCA 919">call credits were given after lease agreement was approved</citphrase>
<citphrase id="cp7.11">citing from="[2010] FCA 919">futurity</citphrase>
<citphrase id="cp7.12">citing from="[2010] FCA 919">compulsion</citphrase>
<citphrase id="cp7.13">citing from="[2010] FCA 919">giving of call credits to customers who had already entered lease</citphrase>
<citphrase id="cp7.14">citing from="[2010] FCA 919">whether future acquisition</citphrase>
<citphrase id="cp7.15">citing from="[2010] FCA 919">customer's awareness of the condition  practice and procedure</citphrase>
<citphrase id="cp7.16">citing from="[2010] FCA 919">applications by respondents for summary judgment</citphrase>
<citphrase id="cp7.17">citing from="[2010] FCA 919">reasonable prospect of success</citphrase>
<citphrase id="cp7.18">citing from="[2010] FCA 919">questions of law</citphrase>
<citphrase id="cp7.19">citing from="[2010] FCA 919">application for strike out of pleadings</citphrase>
<citphrase id="cp7.20">citing from="[2010] FCA 919">whether pleading tends to cause prejudice, embarrassment or delay</citphrase>
<citphrase id="cp7.21">citing from="[2010] FCA 919">leave to replead</citphrase>
<citphrase id="cp7.22">citing from="[2010] FCA 919">whether pleading of business method appropriate</citphrase>
<citphrase id="cp8.0">citing from="[2010] WASC 147">practice and procedure</citphrase>
<citphrase id="cp8.1">citing from="[2010] WASC 147">summary judgment</citphrase>
<citphrase id="cp8.2">citing from="[2010] WASC 147">limitation period</citphrase>
<citphrase id="cp8.3">citing from="[2010] WASC 147">disputed facts</citphrase>
<citphrase id="cp8.4">citing from="[2010] WASC 147">a question which ought to be tried</citphrase>
<citphrase id="cp9.0">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp9.1">citing from="[2010] FMCA 389">alleged unlawful termination of employment</citphrase>
<citphrase id="cp9.2">citing from="[2010] FMCA 389">temporary absence or illness</citphrase>
<citphrase id="cp9.3">citing from="[2010] FMCA 389">non-membership of a trade union</citphrase>
<citphrase id="cp9.4">citing from="[2010] FMCA 389">filing of a complaint or participation in proceedings and recourse to competent administrative authority</citphrase>
<citphrase id="cp9.5">citing from="[2010] FMCA 389">political opinion, national extraction or social origin.  practice and procedure</citphrase>
<citphrase id="cp9.6">citing from="[2010] FMCA 389">application for summary dismissal</citphrase>
<citphrase id="cp9.7">citing from="[2010] FMCA 389">principles.  practice and procedure</citphrase>
<citphrase id="cp9.8">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp9.9">citing from="[2010] FMCA 389">alleged unlawful termination</citphrase>
<citphrase id="cp9.10">citing from="[2010] FMCA 389">onus of proof.</citphrase>
<citphrase id="cp10.0">citing from="[2010] FCA 544">practice and procedure</citphrase>
<citphrase id="cp10.1">citing from="[2010] FCA 544">summary judgment application made by respondent</citphrase>
<citphrase id="cp10.2">citing from="[2010] FCA 544">defence raised by respondent under s 123 of trade marks act 1995 (cth)</citphrase>
<citphrase id="cp10.3">citing from="[2010] FCA 544">moving party bears the onus in a summary judgment application</citphrase>
<citphrase id="cp10.4">citing from="[2010] FCA 544">consideration of the test under s 31a of federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp10.5">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="cp10.6">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="cp10.7">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="cp10.8">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="cp10.9">citing from="[2010] FCA 544">security for costs application made by respondent</citphrase>
<citphrase id="cp10.10">citing from="[2010] FCA 544">applicant admitted to being impecunious</citphrase>
<citphrase id="cp10.11">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="cp10.12">citing from="[2010] FCA 544">staged payments found to be the best way to deal with the application</citphrase>
<citphrase id="cp11.0">citing from="[2010] FCA 155">practice and procedure</citphrase>
<citphrase id="cp11.1">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="cp12.0">citing from="[2010] FCA 69">practice and procedure</citphrase>
<citphrase id="cp12.1">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="cp12.2">citing from="[2010] FCA 69">causes of action relied upon have no reasonable prospects of succeeding</citphrase>
<citphrase id="cp12.3">citing from="[2010] FCA 69">proceedings dismissed pursuant to s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp13.0">citing from="[2010] FMCA 5">practice and procedure</citphrase>
<citphrase id="cp13.1">citing from="[2010] FMCA 5">application to summarily dismiss proceedings</citphrase>
<citphrase id="cp13.2">citing from="[2010] FMCA 5">principles.  practice and procedure</citphrase>
<citphrase id="cp13.3">citing from="[2010] FMCA 5">application to transfer proceedings to the federal court</citphrase>
<citphrase id="cp13.4">citing from="[2010] FMCA 5">principles.  trade practices</citphrase>
<citphrase id="cp13.5">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="cp13.6">citing from="[2010] FMCA 5">whether allegations made "in trade or commerce"</citphrase>
<citphrase id="cp13.7">citing from="[2010] FMCA 5">injunction sought to restrain respondents in respect of native title and aboriginal heritage matters.</citphrase>
<citphrase id="cp14.0">citing from="[2009] FCA 1500">practice and procedure</citphrase>
<citphrase id="cp14.1">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="cp14.2">citing from="[2009] FCA 1500">whether the whole or part of the respondents' cross-claim should be dismissed or struck out</citphrase>
<citphrase id="cp14.3">citing from="[2009] FCA 1500">whether interlocutory injunction should be granted</citphrase>
<citphrase id="cp14.4">citing from="[2009] FCA 1500">all applications refused</citphrase>
<citphrase id="cp15.0">citing from="[2009] FCA 1487">practice and procedure</citphrase>
<citphrase id="cp15.1">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="cp15.2">citing from="[2009] FCA 1487">alternatively for the statement of claim to be struck out</citphrase>
<citphrase id="cp15.3">citing from="[2009] FCA 1487">whether reasonable cause of action disclosed</citphrase>
<citphrase id="cp15.4">citing from="[2009] FCA 1487">whether court has jurisdiction</citphrase>
<citphrase id="cp15.5">citing from="[2009] FCA 1487">whether matter 'arising under any laws made by the parliament'</citphrase>
<citphrase id="cp15.6">citing from="[2009] FCA 1487">whether s 47a of the limitation act 1935 (wa) applies</citphrase>
<citphrase id="cp15.7">citing from="[2009] FCA 1487">whether causes of action statute barred    torts</citphrase>
<citphrase id="cp15.8">citing from="[2009] FCA 1487">proceedings against civil aviation safety authority (casa) and officers of casa</citphrase>
<citphrase id="cp15.9">citing from="[2009] FCA 1487">alleged negligence in performance of statutory duties</citphrase>
<citphrase id="cp15.10">citing from="[2009] FCA 1487">existence and scope of duty of care</citphrase>
<citphrase id="cp15.11">citing from="[2009] FCA 1487">whether statutory duty of care owed by casa or its officers</citphrase>
<citphrase id="cp15.12">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="cp15.13">citing from="[2009] FCA 1487">whether misfeasance by officers of casa</citphrase>
<citphrase id="cp15.14">citing from="[2009] FCA 1487">whether private right of damages available to applicants</citphrase>
<citphrase id="cp16.0">citing from="[2009] FCA 1240">practice and procedure</citphrase>
<citphrase id="cp16.1">citing from="[2009] FCA 1240">application for leave to appeal from an interlocutory judgment of the federal magistrates court</citphrase>
<citphrase id="cp16.2">citing from="[2009] FCA 1240">relevant principles</citphrase>
<citphrase id="cp16.3">citing from="[2009] FCA 1240">amendment of pleadings</citphrase>
<citphrase id="cp16.4">citing from="[2009] FCA 1240">summary dismissal under s 17a of the federal magistrates act 1999 (cth)</citphrase>
<citphrase id="cp16.5">citing from="[2009] FCA 1240">application dismissed</citphrase>
<citphrase id="cp17.0">citing from="[2009] FCA 1222">trade marks</citphrase>
<citphrase id="cp17.1">citing from="[2009] FCA 1222">applicant seeking rectification by cancellation of trade mark</citphrase>
<citphrase id="cp17.2">citing from="[2009] FCA 1222">construction of s 88 of trade marks act 1995 (cth)</citphrase>
<citphrase id="cp17.3">citing from="[2009] FCA 1222">grounds relied upon not enlivening s 88 of the act   practice and procedure</citphrase>
<citphrase id="cp17.4">citing from="[2009] FCA 1222">quasi summary nature of trade mark opposition proceedings</citphrase>
<citphrase id="cp17.5">citing from="[2009] FCA 1222">orders by consent dismissing appeal to federal court</citphrase>
<citphrase id="cp17.6">citing from="[2009] FCA 1222">undertakings noted including undertaking "not to threaten the respondent ... with any form of action"</citphrase>
<citphrase id="cp17.7">citing from="[2009] FCA 1222">construction of consent orders and undertakings</citphrase>
<citphrase id="cp17.8">citing from="[2009] FCA 1222">threaten in the context intended to comprehend "the initiation" of an action</citphrase>
<citphrase id="cp18.0">citing from="[2009] FMCA 957">human rights</citphrase>
<citphrase id="cp18.1">citing from="[2009] FMCA 957">sex discrimination act 1984</citphrase>
<citphrase id="cp18.2">citing from="[2009] FMCA 957">interim application.  practice and procedure</citphrase>
<citphrase id="cp18.3">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="cp18.4">citing from="[2009] FMCA 957">application of order 11 rule 16 of the federal court rules to points of claim</citphrase>
<citphrase id="cp18.5">citing from="[2009] FMCA 957">application for summary dismissal of application or various claims for relief in relation to particular respondents.</citphrase>
<citphrase id="cp19.0">citing from="[2009] FCA 965">administrative law</citphrase>
<citphrase id="cp19.1">citing from="[2009] FCA 965">judicial review</citphrase>
<citphrase id="cp19.2">citing from="[2009] FCA 965">appeal from decision of administrative appeals tribunal</citphrase>
<citphrase id="cp19.3">citing from="[2009] FCA 965">whether first applicant a proper party and capable of commencing proceedings</citphrase>
<citphrase id="cp19.4">citing from="[2009] FCA 965">whether second applicant has standing to bring appeal</citphrase>
<citphrase id="cp19.5">citing from="[2009] FCA 965">whether denial of procedural fairness</citphrase>
<citphrase id="cp19.6">citing from="[2009] FCA 965">whether issue estoppel</citphrase>
<citphrase id="cp19.7">citing from="[2009] FCA 965">whether right to damages for alleged breaches of social security act 1991</citphrase>
<citphrase id="cp21.0">citing from="[2009] FCA 368">practice and procedure</citphrase>
<citphrase id="cp21.1">citing from="[2009] FCA 368">application for further particular discovery</citphrase>
<citphrase id="cp21.2">citing from="[2009] FCA 368">principles governing discovery</citphrase>
<citphrase id="cp21.3">citing from="[2009] FCA 368">whether burden of discovery outweighs benefit</citphrase>
<citphrase id="cp21.4">citing from="[2009] FCA 368">whether discovery relevant to pleaded issues</citphrase>
<citphrase id="cp21.5">citing from="[2009] FCA 368">whether sufficient evidence to support order for further discovery</citphrase>
<citphrase id="cp21.6">citing from="[2009] FCA 368">whether application constitutes 'fishing expedition'</citphrase>
<citphrase id="cp21.7">citing from="[2009] FCA 368">whether respondents should be directed to respond to applicant's notice to admit facts</citphrase>
<citphrase id="cp21.8">citing from="[2009] FCA 368">whether leave should be granted to applicant to administer interrogatories</citphrase>
<citphrase id="cp21.9">citing from="[2009] FCA 368">application for summary dismissal by respondents</citphrase>
<citphrase id="cp21.10">citing from="[2009] FCA 368">whether reasonable prospect of success    equity</citphrase>
<citphrase id="cp21.11">citing from="[2009] FCA 368">applicant claims two reports on sea keeping of its vessels confidential</citphrase>
<citphrase id="cp21.12">citing from="[2009] FCA 368">alleged misuse of confidential information</citphrase>
<citphrase id="cp21.13">citing from="[2009] FCA 368">springboard doctrine</citphrase>
<citphrase id="cp22.0">citing from="[2009] FCA 332">practice and procedure</citphrase>
<citphrase id="cp22.1">citing from="[2009] FCA 332">pleadings</citphrase>
<citphrase id="cp22.2">citing from="[2009] FCA 332">summary judgment and strike out</citphrase>
<citphrase id="cp22.3">citing from="[2009] FCA 332">requirements of 'no reasonable prospect of success'</citphrase>
<citphrase id="cp22.4">citing from="[2009] FCA 332">whether a strike out is more appropriate than summary judgment</citphrase>
<citphrase id="cp22.5">citing from="[2009] FCA 332">s 31a federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp22.6">citing from="[2009] FCA 332">o 11 r 16 federal court rules (cth)   intellectual property</citphrase>
<citphrase id="cp22.7">citing from="[2009] FCA 332">copyright</citphrase>
<citphrase id="cp22.8">citing from="[2009] FCA 332">facts necessary to give rise to a claim of conversion</citphrase>
<citphrase id="cp22.9">citing from="[2009] FCA 332">whether there is an 'infringing copy'</citphrase>
<citphrase id="cp22.10">citing from="[2009] FCA 332">s 116 copyright act 1968 (cth)   practice and procedure</citphrase>
<citphrase id="cp22.11">citing from="[2009] FCA 332">costs</citphrase>
<citphrase id="cp22.12">citing from="[2009] FCA 332">whether both parties were partially successful</citphrase>
<citphrase id="cp22.13">citing from="[2009] FCA 332">whether costs should be awarded to a party</citphrase>
<citphrase id="cp24.0">citing from="[2009] FCA 256">practice and procedure</citphrase>
<citphrase id="cp24.1">citing from="[2009] FCA 256">application for summary judgment made under s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp24.2">citing from="[2009] FCA 256">whether defences had no reasonable prospects of success</citphrase>
<citphrase id="cp24.3">citing from="[2009] FCA 256">defences to allegation of trade mark infringement could not succeed</citphrase>
<citphrase id="cp24.4">citing from="[2009] FCA 256">defences to allegations of copyright infringement, passing off, and contraventions of the fair trading act 1999 (vic) and the trade practices act 1974 (cth) raised questions of fact to be determined at trial</citphrase>
<citphrase id="cp24.5">citing from="[2009] FCA 256">application successful in part.    intellectual property</citphrase>
<citphrase id="cp24.6">citing from="[2009] FCA 256">whether marks appearing on the respondents' products were deceptively similar to the applicant's trade mark</citphrase>
<citphrase id="cp24.7">citing from="[2009] FCA 256">whether cancellation of registered trade mark under s 88 of the trade marks act 1955 (cth) could operate retrospectively.</citphrase>
<citphrase id="cp25.0">citing from="[2009] FCAFC 6">practice and procedure</citphrase>
<citphrase id="cp25.1">citing from="[2009] FCAFC 6">whether primary judge correct to dismiss application on grounds that proceedings had no reasonable prospects of success and disclosed no cause of action</citphrase>
<citphrase id="cp25.2">citing from="[2009] FCAFC 6">circumstances where self-represented litigant failed to comply with court directions in relation to filing of affidavit outlining essential factual elements of claim, but had outlined his claim orally to court</citphrase>
<citphrase id="cp25.3">citing from="[2009] FCAFC 6">whether applicant had articulated any arguable claim for relief or cause of action  practice and procedure</citphrase>
<citphrase id="cp25.4">citing from="[2009] FCAFC 6">appeals</citphrase>
<citphrase id="cp25.5">citing from="[2009] FCAFC 6">nature of orders</citphrase>
<citphrase id="cp25.6">citing from="[2009] FCAFC 6">interlocutory or final</citphrase>
<citphrase id="cp25.7">citing from="[2009] FCAFC 6">whether order made by primary judge, under s 31a(2) federal court of australia act 1976 (cth), that whole claim against one of a number of parties had no reasonable prospects of success, interlocutory or final</citphrase>
<citphrase id="cp25.8">citing from="[2009] FCAFC 6">circumstances where order made by primary judge did not dispose of whole of proceedings practice and procedure</citphrase>
<citphrase id="cp25.9">citing from="[2009] FCAFC 6">discretionary power of court to receive further evidence on appeal</citphrase>
<citphrase id="cp25.10">citing from="[2009] FCAFC 6">whether different result would have occurred if evidence was available at trial</citphrase>
<citphrase id="cp25.11">citing from="[2009] FCAFC 6">whether in interests of justice to accept further evidence</citphrase>
<citphrase id="cp25.12">citing from="[2009] FCAFC 6">whether further evidence establishes reasonable prospect of succeeding</citphrase>
<citphrase id="cp26.0">citing from="[2008] FMCA 1374">bankruptcy</citphrase>
<citphrase id="cp26.1">citing from="[2008] FMCA 1374">application to review decision or conduct of a trustee in the administration of a bankrupt estate</citphrase>
<citphrase id="cp26.2">citing from="[2008] FMCA 1374">sale of real estate</citphrase>
<citphrase id="cp26.3">citing from="[2008] FMCA 1374">trustee permitting asserted secured creditor to take residue of the proceeds of the sale</citphrase>
<citphrase id="cp26.4">citing from="[2008] FMCA 1374">security later undermined by decision of the supreme court in separate proceedings</citphrase>
<citphrase id="cp26.5">citing from="[2008] FMCA 1374">whether the trustee responsible for any loss to unsecured creditors considered.  practice and procedure</citphrase>
<citphrase id="cp26.6">citing from="[2008] FMCA 1374">interlocutory dismissal of application</citphrase>
<citphrase id="cp26.7">citing from="[2008] FMCA 1374">no reasonable prospect of success.</citphrase>
<citphrase id="cp27.0">citing from="[2008] FMCA 1340">human rights</citphrase>
<citphrase id="cp27.1">citing from="[2008] FMCA 1340">no reasonable prospect of success</citphrase>
<citphrase id="cp27.2">citing from="[2008] FMCA 1340">abuse of process vexatious proceeding in this and the other courts</citphrase>
<citphrase id="cp27.3">citing from="[2008] FMCA 1340">costs matter</citphrase>
<citphrase id="cp27.4">citing from="[2008] FMCA 1340">raise issue of public interest</citphrase>
<citphrase id="cp27.5">citing from="[2008] FMCA 1340">seeking orders of person benefit costs against unsuccessful applicant.</citphrase>
<citphrase id="cp28.0">citing from="[2008] FMCA 984">human rights</citphrase>
<citphrase id="cp28.1">citing from="[2008] FMCA 984">disability discrimination</citphrase>
<citphrase id="cp28.2">citing from="[2008] FMCA 984">sex discrimination</citphrase>
<citphrase id="cp28.3">citing from="[2008] FMCA 984">sexual harassment</citphrase>
<citphrase id="cp28.4">citing from="[2008] FMCA 984">victimisation.  practice  procedure</citphrase>
<citphrase id="cp28.5">citing from="[2008] FMCA 984">no reasonable prospects of success</citphrase>
<citphrase id="cp28.6">citing from="[2008] FMCA 984">summary dismissal application</citphrase>
<citphrase id="cp28.7">citing from="[2008] FMCA 984">appropriate test</citphrase>
<citphrase id="cp28.8">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="cp28.9">citing from="[2008] FMCA 984">these proceedings vexatious and an abuse of process.  practice  procedure</citphrase>
<citphrase id="cp28.10">citing from="[2008] FMCA 984">vexatious litigant allegation</citphrase>
<citphrase id="cp28.11">citing from="[2008] FMCA 984">although these proceedings vexatious because other similar proceedings pending, the underlying claim may not be vexatious</citphrase>
<citphrase id="cp28.12">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="cp28.13">citing from="[2008] FMCA 984">application for order that publication of applicant's name be prohibited</citphrase>
<citphrase id="cp28.14">citing from="[2008] FMCA 984">criteria for such an order considered</citphrase>
<citphrase id="cp28.15">citing from="[2008] FMCA 984">application refused.</citphrase>
<citphrase id="cp29.0">citing from="[2008] FMCA 947">trade practices</citphrase>
<citphrase id="cp29.1">citing from="[2008] FMCA 947">whether conduct in trade or commence.  trade practices</citphrase>
<citphrase id="cp29.2">citing from="[2008] FMCA 947">whether conduct capable of being misleading or deceptive.  trade practices</citphrase>
<citphrase id="cp29.3">citing from="[2008] FMCA 947">unconscionable conduct</citphrase>
<citphrase id="cp29.4">citing from="[2008] FMCA 947">whether minority shareholding is a special disadvantage.  practice  procedure</citphrase>
<citphrase id="cp29.5">citing from="[2008] FMCA 947">application for summary disposal pursuant to s.17a federal magistrates court act 1999</citphrase>
<citphrase id="cp29.6">citing from="[2008] FMCA 947">principles to be applied.  practice  procedure</citphrase>
<citphrase id="cp29.7">citing from="[2008] FMCA 947">costs</citphrase>
<citphrase id="cp29.8">citing from="[2008] FMCA 947">circumstances where order for indemnity costs appropriate.</citphrase>
<citphrase id="cp30.0">citing from="[2008] FMCAfam 641">family law</citphrase>
<citphrase id="cp30.1">citing from="[2008] FMCAfam 641">binding financial agreement</citphrase>
<citphrase id="cp30.2">citing from="[2008] FMCAfam 641">setting aside.  practice  procedure</citphrase>
<citphrase id="cp30.3">citing from="[2008] FMCAfam 641">summary judgment</citphrase>
<citphrase id="cp30.4">citing from="[2008] FMCAfam 641">whether the applicant has no reasonable prospect of successfully prosecuting his claim considered.</citphrase>
<citphrase id="cp31.0">citing from="[2008] FCA 955">practice and procedure</citphrase>
<citphrase id="cp31.1">citing from="[2008] FCA 955">motions for dismissal of proceedings pursuant to federal court of australia act 1976 (cth) s 31a</citphrase>
<citphrase id="cp31.2">citing from="[2008] FCA 955">alternatively for statement of claim to be struck out</citphrase>
<citphrase id="cp31.3">citing from="[2008] FCA 955">federal court rules order 11 rule 16 or order 20 rule 2</citphrase>
<citphrase id="cp31.4">citing from="[2008] FCA 955">construction of option in contract to lease and subsequent deed of lease</citphrase>
<citphrase id="cp31.5">citing from="[2008] FCA 955">consideration of evidence of extrinsic material in aid of construction</citphrase>
<citphrase id="cp31.6">citing from="[2008] FCA 955">common intention unilateral mistake</citphrase>
<citphrase id="cp31.7">citing from="[2008] FCA 955">estoppel</citphrase>
<citphrase id="cp31.8">citing from="[2008] FCA 955">equitable estoppel</citphrase>
<citphrase id="cp31.9">citing from="[2008] FCA 955">breach of warranty</citphrase>
<citphrase id="cp31.10">citing from="[2008] FCA 955">unconscionable conduct</citphrase>
<citphrase id="cp31.11">citing from="[2008] FCA 955">ss 51aa and 51ac of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp31.12">citing from="[2008] FCA 955">misleading and deceptive conduct</citphrase>
<citphrase id="cp31.13">citing from="[2008] FCA 955">ss 6(3) and 52 trade practices act and s 10 fair trading act 1987 (wa).</citphrase>
<citphrase id="cp32.0">citing from="[2008] FCA 849">practice and procedure</citphrase>
<citphrase id="cp32.1">citing from="[2008] FCA 849">interrogatories in proceedings for judicial review</citphrase>
<citphrase id="cp32.2">citing from="[2008] FCA 849">proposed questioning of respondents in relation to decision by minister to order detention of firearms</citphrase>
<citphrase id="cp32.3">citing from="[2008] FCA 849">challenge to grounds of review</citphrase>
<citphrase id="cp32.4">citing from="[2008] FCA 849">obligations of minister under s 77ea of customs act</citphrase>
<citphrase id="cp32.5">citing from="[2008] FCA 849">whether departure of minister from practice of predecessors creates potentially reviewable error</citphrase>
<citphrase id="cp32.6">citing from="[2008] FCA 849">whether applicant experienced discrimination based on non-detention of similar firearms</citphrase>
<citphrase id="cp32.7">citing from="[2008] FCA 849">whether s 31a of federal court of australia act capable of being invoked in relation to untenable grounds of review</citphrase>
<citphrase id="cp32.8">citing from="[2008] FCA 849">whether interrogatories objectionable on the basis of "fishing"</citphrase>
<citphrase id="cp33.0">citing from="[2008] FMCA 715">industrial law</citphrase>
<citphrase id="cp33.1">citing from="[2008] FMCA 715">practice  procedure</citphrase>
<citphrase id="cp33.2">citing from="[2008] FMCA 715">summary dismissal of proceedings</citphrase>
<citphrase id="cp33.3">citing from="[2008] FMCA 715">unlawful termination claim.</citphrase>
<citphrase id="cp34.0">citing from="[2008] FCAFC 60">practice and procedure</citphrase>
<citphrase id="cp34.1">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="cp34.2">citing from="[2008] FCAFC 60">balance of cross-claim remaining on foot</citphrase>
<citphrase id="cp34.3">citing from="[2008] FCAFC 60">nature of orders</citphrase>
<citphrase id="cp34.4">citing from="[2008] FCAFC 60">interlocutory or final</citphrase>
<citphrase id="cp34.5">citing from="[2008] FCAFC 60">test for determining nature of order</citphrase>
<citphrase id="cp34.6">citing from="[2008] FCAFC 60">legal effect of judgment</citphrase>
<citphrase id="cp34.7">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="cp34.8">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="cp34.9">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="cp34.10">citing from="[2008] FCAFC 60">unconscionable conduct</citphrase>
<citphrase id="cp34.11">citing from="[2008] FCAFC 60">claim pursuant to s 51ac(1) of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp34.12">citing from="[2008] FCAFC 60">relationship between sub-ss 51ac(1) and (9)</citphrase>
<citphrase id="cp34.13">citing from="[2008] FCAFC 60">meaning of "price" in s 51ac(9)</citphrase>
<citphrase id="cp34.14">citing from="[2008] FCAFC 60">price of "supply or possible supply of goods or services"</citphrase>
<citphrase id="cp34.15">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="cp34.16">citing from="[2008] FCAFC 60">legislation</citphrase>
<citphrase id="cp34.17">citing from="[2008] FCAFC 60">interpretation and construction</citphrase>
<citphrase id="cp34.18">citing from="[2008] FCAFC 60">legislative intent behind s 31a</citphrase>
<citphrase id="cp34.19">citing from="[2008] FCAFC 60">construction of test in s 31a</citphrase>
<citphrase id="cp34.20">citing from="[2008] FCAFC 60">purposive test, acts interpretation act 1901 (cth), s 15aa</citphrase>
<citphrase id="cp34.21">citing from="[2008] FCAFC 60">legislative intent behind s 51ac</citphrase>
<citphrase id="cp34.22">citing from="[2008] FCAFC 60">whether sub-s 51ac(9) intended to provide an exception to sub-s 51ac(1)</citphrase>
<citphrase id="cp34.23">citing from="[2008] FCAFC 60">onus of proof</citphrase>
<citphrase id="cp35.0">citing from="[2008] FCA 395">practice and procedure</citphrase>
<citphrase id="cp35.1">citing from="[2008] FCA 395">applications for leave to appeal an interlocutory judgment</citphrase>
<citphrase id="cp35.2">citing from="[2008] FCA 395">onus in proceedings borne by applicant for leave to appeal</citphrase>
<citphrase id="cp35.3">citing from="[2008] FCA 395">tests for the grant of leave not made out</citphrase>
<citphrase id="cp35.4">citing from="[2008] FCA 395">purported election to have applications dealt by the full court of the federal court</citphrase>
<citphrase id="cp35.5">citing from="[2008] FCA 395">no right of election exists under the federal court rules</citphrase>
<citphrase id="cp35.6">citing from="[2008] FCA 395">applications dismissed with costs</citphrase>
<citphrase id="cp36.0">citing from="[2008] FCA 59">practice and procedure</citphrase>
<citphrase id="cp36.1">citing from="[2008] FCA 59">application for summary judgment</citphrase>
<citphrase id="cp36.2">citing from="[2008] FCA 59">s 31a(2) federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp36.3">citing from="[2008] FCA 59">no claim identified</citphrase>
<citphrase id="cp36.4">citing from="[2008] FCA 59">no factual foundation for a claim provided</citphrase>
<citphrase id="cp36.5">citing from="[2008] FCA 59">no reasonable prospect of ever being able to identify a claim or factual foundation for a claim</citphrase>
<citphrase id="cp36.6">citing from="[2008] FCA 59">no reasonable prospect of success  practice and procedure</citphrase>
<citphrase id="cp36.7">citing from="[2008] FCA 59">application s 31a(2) federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp36.8">citing from="[2008] FCA 59">whether hearsay affidavit evidence permitted</citphrase>
<citphrase id="cp37.0">citing from="[2008] FCA 55">practice and procedure</citphrase>
<citphrase id="cp37.1">citing from="[2008] FCA 55">summary judgment</citphrase>
<citphrase id="cp38.0">citing from="[2007] FMCA 2104">industrial law</citphrase>
<citphrase id="cp38.1">citing from="[2007] FMCA 2104">unlawful termination</citphrase>
<citphrase id="cp38.2">citing from="[2007] FMCA 2104">complaint to employer only does not satisfy criteria of s.659(2)(e)</citphrase>
<citphrase id="cp38.3">citing from="[2007] FMCA 2104">reverse onus of proof not enlivened</citphrase>
<citphrase id="cp38.4">citing from="[2007] FMCA 2104">s.793(1)(j) may not be limited to interaction with industrial associations</citphrase>
<citphrase id="cp38.5">citing from="[2007] FMCA 2104">discussion of objects clauses</citphrase>
<citphrase id="cp38.6">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="cp38.7">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="cp38.8">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="cp38.9">citing from="[2007] FMCA 2104">no reasonable prospects of success</citphrase>
<citphrase id="cp38.10">citing from="[2007] FMCA 2104">summary dismissal application</citphrase>
<citphrase id="cp38.11">citing from="[2007] FMCA 2104">appropriate test</citphrase>
<citphrase id="cp38.12">citing from="[2007] FMCA 2104">discussion of "frivolous and vexatious"</citphrase>
<citphrase id="cp38.13">citing from="[2007] FMCA 2104">application in a case not out of time if proceedings still on foot</citphrase>
<citphrase id="cp38.14">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="cp38.15">citing from="[2007] FMCA 2104">disqualification application</citphrase>
<citphrase id="cp38.16">citing from="[2007] FMCA 2104">refusal</citphrase>
<citphrase id="cp38.17">citing from="[2007] FMCA 2104">allegations of bias not made out.</citphrase>
<citphrase id="cp40.0">citing from="[2007] FMCA 1788">human rights</citphrase>
<citphrase id="cp40.1">citing from="[2007] FMCA 1788">application for summary dismissal</citphrase>
<citphrase id="cp40.2">citing from="[2007] FMCA 1788">where applicant alleged breaches of racial discrimination act 1975 and disability discrimination act 1992</citphrase>
<citphrase id="cp40.3">citing from="[2007] FMCA 1788">where applicant previously commenced proceedings in industrial relations commission and administrative decisions tribunal</citphrase>
<citphrase id="cp40.4">citing from="[2007] FMCA 1788">whether applicant's allegations covered by deed of release</citphrase>
<citphrase id="cp40.5">citing from="[2007] FMCA 1788">whether reasonable prospect of success.</citphrase>
<citphrase id="cp41.0">citing from="[2007] FCA 1642">practice and procedure</citphrase>
<citphrase id="cp41.1">citing from="[2007] FCA 1642">summary judgment</citphrase>
<citphrase id="cp42.0">citing from="[2007] FCA 1253">social security</citphrase>
<citphrase id="cp42.1">citing from="[2007] FCA 1253">job network scheme</citphrase>
<citphrase id="cp42.2">citing from="[2007] FCA 1253">claim for damages for failing to assist in procuring employment</citphrase>
<citphrase id="cp42.3">citing from="[2007] FCA 1253">whether court has jurisdiction.</citphrase>
<citphrase id="cp43.0">citing from="[2007] FMCA 1360">administrative law</citphrase>
<citphrase id="cp43.1">citing from="[2007] FMCA 1360">summary dismissal</citphrase>
<citphrase id="cp43.2">citing from="[2007] FMCA 1360">no reasonable prospect of success</citphrase>
<citphrase id="cp43.3">citing from="[2007] FMCA 1360">abuse of process.</citphrase>
<citphrase id="cp44.0">citing from="[2007] FCA 511">income tax</citphrase>
<citphrase id="cp44.1">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="cp44.2">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="cp44.3">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="cp44.4">citing from="[2007] FCA 511">different ato officer caused a notice to produce the documents to issue to taxpayers</citphrase>
<citphrase id="cp44.5">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="cp44.6">citing from="[2007] FCA 511">application for summary dismissal of proceeding based on suggested incompetency of present application</citphrase>
<citphrase id="cp44.7">citing from="[2007] FCA 511">whether decision to allow access was a "decision of an administrative character made ... under an enactment"</citphrase>
<citphrase id="cp44.8">citing from="[2007] FCA 511">whether guidelines were "an enactment"</citphrase>
<citphrase id="cp44.9">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="cp44.10">citing from="[2007] FCA 511">test for summary dismissal under s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp44.11">citing from="[2007] FCA 511">meaning of "no reasonable prospect of success"</citphrase>
<citphrase id="cp44.12">citing from="[2007] FCA 511">held</citphrase>
<citphrase id="cp45.0">citing from="[2007] FMCA 157">copyright</citphrase>
<citphrase id="cp45.1">citing from="[2007] FMCA 157">alleged breaches of copyright in adult films and confidential customer lists</citphrase>
<citphrase id="cp45.2">citing from="[2007] FMCA 157">alleged breach of confidence in the lists.practice and procedure</citphrase>
<citphrase id="cp45.3">citing from="[2007] FMCA 157">summary judgment</citphrase>
<citphrase id="cp45.4">citing from="[2007] FMCA 157">whether the respondents have a reasonable prospect of successfully defending the claims considered.</citphrase>
<citphrase id="cp46.0">citing from="[2007] FCA 195">practice and procedure</citphrase>
<citphrase id="cp46.1">citing from="[2007] FCA 195">consideration of an application to extend time for the filing and service of a notice of appeal</citphrase>
<citphrase id="cp46.2">citing from="[2007] FCA 195">consideration of whether the judgment appealed from is an interlocutory or final judgment</citphrase>
<citphrase id="cp46.3">citing from="[2007] FCA 195">consideration of an application for summary dismissal of the proceedings under both s 31a of the federal court of australia act 1976 (cth) and order 20, rule 2 of the federal court rules</citphrase>
<citphrase id="cp46.4">citing from="[2007] FCA 195">consideration of the relationship between approaches to the striking out of a pleading and entering summary judgment pursuant to either s 31a of the act or order 20, rule 2 of the federal court rules . bankruptcy</citphrase>
<citphrase id="cp46.5">citing from="[2007] FCA 195">consideration of the nature of a claim falling within the exemption contained in s 116(2)(g) of the bankruptcy act 1966 (cth) and whether the applicant in the proceedings has standing to maintain the particular claim.  federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp46.6">citing from="[2007] FCA 195">s 24(1) , s 24(1a) , s 25  federal court rules</citphrase>
<citphrase id="cp46.7">citing from="[2007] FCA 195">order 52, rule 10; order 52, rule 15(1) ; order 52, rule 15(2)  bankruptcy act 1966 (cth)</citphrase>
<citphrase id="cp46.8">citing from="[2007] FCA 195">s 116(2)(g)  trade practices act 1974 (cth)</citphrase>
<citphrase id="cp46.9">citing from="[2007] FCA 195">ss 52 , 51aa, 60, 82, 87(1d) rogers v asset loan co pty ltd [2006] fca 1708</citphrase>
<citphrase id="cp46.10">citing from="[2007] FCA 195">quoted australian competition and consumer commission v fox symes  associates pty ltd [2005] fca 1071</citphrase>
<citphrase id="cp46.11">citing from="[2007] FCA 195">cited trade practices commission v australian iron and steel pty limited [1990] fca 23 ; (1989) 22 fcr 305</citphrase>
<citphrase id="cp46.12">citing from="[2007] FCA 195">cited rogers v asset loan co pty ltd  ors [2006] fca 434</citphrase>
<citphrase id="cp46.13">citing from="[2007] FCA 195">quoted munnings v australian government solicitor [1994] hca 12 ; (1994) 120 alr 586</citphrase>
<citphrase id="cp46.14">citing from="[2007] FCA 195">cited tampion v anderson [1973] vicrp 82 ; (1974) 3 alr 414</citphrase>
<citphrase id="cp46.15">citing from="[2007] FCA 195">cited hall v nominal defendant [1966] hca 36 ; (1966) 117 clr 423</citphrase>
<citphrase id="cp46.16">citing from="[2007] FCA 195">cited little v victoria (1998) 4 vr 596</citphrase>
<citphrase id="cp46.17">citing from="[2007] FCA 195">cited wickstead v browne (1992) 30 nswlr 1</citphrase>
<citphrase id="cp46.18">citing from="[2007] FCA 195">cited platypus leasing inc  ors v commissioner of taxation [2005] nswca 399</citphrase>
<citphrase id="cp46.19">citing from="[2007] FCA 195">cited johnston v cameron [2002] fcafc 251 ; [2002] fcafc 251 ; (2002) 124 fcr 160</citphrase>
<citphrase id="cp46.20">citing from="[2007] FCA 195">cited port of melbourne authority v ashun pty limited (1980) 147 clr 35</citphrase>
<citphrase id="cp46.21">citing from="[2007] FCA 195">cited dcor corp pty ltd v dart industries inc [1991] fca 655 ; (1991) 33 fcr 397</citphrase>
<citphrase id="cp46.22">citing from="[2007] FCA 195">cited ogawa v university of melbourne (no. 2) [2004] fca 1275</citphrase>
<citphrase id="cp46.23">citing from="[2007] FCA 195">cited jess v scott and others (1986) 12 fcr 187</citphrase>
<citphrase id="cp46.24">citing from="[2007] FCA 195">cited australian competition and consumer commission v maritime union of australia (2001) 114 fcr 427</citphrase>
<citphrase id="cp46.25">citing from="[2007] FCA 195">cited cox v journeaux (no. 2) [1935] hca 48 ; (1935) 52 clr 713</citphrase>
<citphrase id="cp46.26">citing from="[2007] FCA 195">cited beckham v drake [1849] engr 843 ; (1849) 2 hlc 579</citphrase>
<citphrase id="cp46.27">citing from="[2007] FCA 195">cited wilson v united counties bank ltd (1920) ac 102</citphrase>
<citphrase id="cp46.28">citing from="[2007] FCA 195">cited faulkner v bluett [1981] fca 3 ; (1981) 52 flr 115</citphrase>
<citphrase id="cp46.29">citing from="[2007] FCA 195">cited bryant v commonwealth bank of australia (1997) 75 fcr 545</citphrase>
<citphrase id="cp46.30">citing from="[2007] FCA 195">cited mannigel v hewlett phelps bc9101907</citphrase>
<citphrase id="cp46.31">citing from="[2007] FCA 195">cited daemar v industrial commission of new south wales  ors (1988) 79 alr 591</citphrase>
<citphrase id="cp46.32">citing from="[2007] FCA 195">cited fortron automotive treatments pty ltd v jones (no. 2) (2006) fca 1401</citphrase>
<citphrase id="cp46.33">citing from="[2007] FCA 195">cited duncan v lipscombe child care services inc [2006] fca 458</citphrase>
<citphrase id="cp46.34">citing from="[2007] FCA 195">cited general steel industries inc v commissioner for railways (nsw) [1964] hca 69 ; (1964) 112 clr 125</citphrase>
<citphrase id="cp46.35">citing from="[2007] FCA 195">cited batistatos v roads and traffic authority of new south wales [2006] hca 27 ; [2006] hca 27 ; (2006) 227 alr 425</citphrase>
<citphrase id="cp46.36">citing from="[2007] FCA 195">cited agar v hyde [2000] hca 41 ; (2000) 201 clr 552</citphrase>
<citphrase id="cp46.37">citing from="[2007] FCA 195">cited boston commercial services pty ltd v ge capital finance australasia pty ltd [2006] fca 1352</citphrase>
<citphrase id="cp46.38">citing from="[2007] FCA 195">cited</citphrase>
<citphrase id="cp47.0">citing from="[2007] FMCA 145">industrial law</citphrase>
<citphrase id="cp47.1">citing from="[2007] FMCA 145">australian workplace agreement</citphrase>
<citphrase id="cp47.2">citing from="[2007] FMCA 145">duress</citphrase>
<citphrase id="cp47.3">citing from="[2007] FMCA 145">not duress merely because australian workplace agreement a condition of engagement.practice and procedure</citphrase>
<citphrase id="cp47.4">citing from="[2007] FMCA 145">summary dismissal of proceedings</citphrase>
<citphrase id="cp47.5">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 144" id="cs1">The Federal Court has observed that: 21. Section 31A [of the FC Act] is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. In this connection I respectfully disagree with the approach taken by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which his Honour said (at [6]): Plainly s 31A [of the FC Act] was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". [15] </sentence>
<sentence from="[2010] FCA 1431" id="cs2">The Plaintiffs prosecute their summary judgment application on the basis of pleaded facts and evidence. Messrs Angeleri, Brindley and O'Brien have each sworn affidavits in response to those relied on by the Plaintiffs. In these circumstances the Court is required to form the necessary judgment, for the purposes of s 31A(1), on the basis of this material and to consider whether the evidence "reasonably excludes the possibility that facts essential to the success of the ... defence will be able to be established": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (per French J). </sentence>
<sentence from="[2010] FCA 919" id="cs3">Judgment under s 31A can be given by reference to pleadings where there is a defect in the pleadings which cannot be cured or by reference to evidence which reasonably excludes the possibility that the facts essential to the claim will be able to be established ( Fortron Automotive Treatments Pty Limited v Jones (2) [2006] FCA 1401 at [20] per French J). </sentence>
<sentence from="[2010] WASC 147" id="cs4">One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] . In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v OffpriceComAu Pty Ltd [2006] FCA 137 at [12] . This is not a new concept. 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] FMCA 389" id="cs5">31. In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 ("Fortron (No. 2)") French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No.</sentence>
<sentence from="[2010] FCA 544" id="cs6">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="cs7">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="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] FMCA 5" id="cs9">In Balding v Ten Talents Pty Ltd [27] this Court agreed with the views of the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [28] where the Federal Court observed that s.31A of the FC Act " allows for 'judgment' or nothing " [29] and this Court agreed with that view as being applicable to summary dismissal applications before this Court, [30] and further observed that: " This judgment or nothing approach must of course be appropriately exercised having regard to the principles established in Boston Commercial, and in the manner prescribed in MG Distribution and Rana. " [31]  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="[2009] FCA 1500" id="cs10">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="cs11">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 1240" id="cs12">Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ('Fortron'), on the other hand, was a case in which summary dismissal was sought. The application was heard by French J, as his Honour then was. He dismissed the application for summary dismissal of the applicant's claim against the sixth, seventh and eighth respondents, Versalife Pty Ltd, Peter Allen Matthews and Donna Lorraine Matthews.</sentence>
<sentence from="[2009] FCA 1222" id="cs13">

 29 Because of their present relevance, I will refer to the observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] where his Honour said that that judgment may be made:

 ... by reference to evidence put on in support of an application under s31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established.</sentence>
<sentence from="[2009] FMCA 957" id="cs14">Of particular relevance is the view of French J (as he then was) in Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401 that s.31A of the Federal Court of Australia Act " is not a vehicle for simply striking out parts of pleadings that are deficient" (at [21]). While his Honour was considering s.31A of the Federal Court of Australia Act , rule 13.10 reflects the approach taken in s.17A of the Federal Magistrates Act 1999 (Cth) (FMA) (the equivalent of s.31A). French J explained his views in Fortron at [19] --- [21] as follows: The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue.</sentence>
<sentence from="[2009] FCA 965" id="cs15">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="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] 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] FCA 368" id="cs17">Pursuant to s 31A , the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if it is satisfied that the party prosecuting the claim has no reasonable prospect of successfully prosecuting it. It is expressly emphasised that for the purposes of s 31A , a proceeding need not be hopeless or be bound to fail for it to have no reasonable prospect of success. The section has been discussed in numerous cases including Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401. It is clear that it is open to the Court to consider evidence in the context of such an application and it is clear that the language of the section imposes a different and less stringent test to the former test described in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130. </sentence>
<sentence from="[2009] FCA 332" id="cs18">The observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] - [21] are particularly useful in distinguishing between the requirements for a summary judgment under s 31A and a strike out as discussed below. His Honour observed that s 31A renders judgment, and is thus distinct from a strike out, which can be followed by the amendment of a pleading. Thus judgment should only be entered where no amendment of pleadings or particulars is possible, that is, where there is a defect in the pleadings which cannot be cured. Order 11 rule 16 of the Rules
 </sentence>
<sentence from="[2009] FCA 436" id="cs19">The question for determination in an application under s 31A is whether Mr Cockrell has any reasonable prospect of successfully prosecuting these proceedings. That question is not answered by a finding that a party's pleading is defective, since pleadings may be rectified by amendments, so as to raise reasonable causes of action or defence. Thus, as French J explained in Fortron Automotive Treatments Pty Limited v Jones (No 2) [2006] FCA 1401 at [19] - [21], the fact that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is, provided that there is a reasonable prospect that by an amendment it could be successfully prosecuted or defended. He pointed out that in order to secure a judgment under s 31A the moving party must show that the other has no reasonable prospect of successfully prosecuting or defending the claim. That determination can be made by reference to pleadings where there is a defect in the pleadings that cannot be cured, or it can be dealt with by evidence. But, s 31A is not a vehicle for simply striking out parts of deficient pleadings. </sentence>
<sentence from="[2009] FCA 256" id="cs20">In the main, Deckers prosecutes its summary judgment application on the basis of pleaded facts and evidence as distinct from issues of law. In these circumstances the Court is required to form the necessary judgment on the basis of the pleadings and the evidence tendered by Deckers and to consider whether the evidence "reasonably excludes the possibility that facts essential to the success of the ..... defence will be able to be established": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] . </sentence>
<sentence from="[2009] FCAFC 6" id="cs21">44 In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] - [21], French J said:

 [19] The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. 48 While Bowen LJ was speaking of an amendment, the general principle applied by Dawson, Gaudron and McHugh JJ in J L Holdings 189 CLR at 154, is apposite here: Fortron [2006] FCA 1401 at [19] . The primary judge was faced with the position where Mr Wills had explained orally, but not on oath, what his case was. He had failed to comply with one direction to file an affidavit outlining what he had said orally on 2 April 2008 and supplementing that account with greater detail. When he appeared on 14 May, Mr Wills was in default. His Honour did not invite Mr Wills to verify, in the witness box, what he had previously said, or explain to him again that a failure to put on the affidavit material that he had been directed to file could be fatal to the proceedings continuing.</sentence>
<sentence from="[2008] FMCA 1374" id="cs22">It is true that 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. Further guidance was provided by French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 (decided on 27 October 2006) at [19]-[21]. His Honour said: The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence.</sentence>
<sentence from="[2008] FMCA 1340" id="cs23">
 31. In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 ("Fortron (No. 2)") French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No.</sentence>
<sentence from="[2008] FMCA 984" id="cs24">The question here, as was discussed by French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 , is whether the applicant has any "reasonable prospect" of successfully prosecuting "the proceeding" or the "part of the proceeding" in issue. Section 17A is concerned with the bringing and defending of proceedings, not just with pleadings; with substance not just with form: White Industries Aust Ltd v Commissioner of Taxation at [50] per Lindgren J. </sentence>
<sentence from="[2008] FMCA 947" id="cs25">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. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] . This is not a new concept. 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] FMCAfam 641" id="cs26">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. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] . In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] . This is not a new concept. 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="cs27">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 849" id="cs28">36 It is a nice question whether s 31A can be invoked in relation to grounds of review that seem untenable. The section permits judgment to be given in favour of one party against another only, and does not address grounds of review as such: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401. Order 54 r 7(1)(a) of the Rules, which governs applications brought under the ADJR Act , provides that a party may apply to the Court for "judgment" in an application for an order for review under O 20 r 2 or s 31A of the Federal Court of Australia Act . Order 54 r 7(1)(b) enables a party to apply to have an application for an order of review stayed or dismissed under O 20 r 4 or r 5. It follows that the Court can dismiss a "claim for relief" in a particular proceeding if that claim constitutes an abuse of process. </sentence>
<sentence from="[2008] FMCA 715" id="cs29">

 31. In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 (" Fortron (No. 2) ") French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No.</sentence>
<sentence from="[2008] FCAFC 60" id="cs30">127 Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or
non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] . In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] . This is not a new concept. 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 .  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 395" id="cs31">4 Furthermore, as Greenwood J pointed out in Rogers v Asset Loan Co Pty Limited [2007] FCA 195 (at [59] --- [60]), s 31A is not directed to striking out pleadings but proceedings as a whole. He referred to the judgment of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401. Greenwood J said that the necessary state of satisfaction 'will rarely be achieved (except in the most transparent of cases) on the strength of a conclusion that the applicant's statement of claim is deficient either in whole or in part' because of the facility for leave to replead. </sentence>
<sentence from="[2008] FCA 59" id="cs32">28 In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] French J set out what the moving party must show:

 "in order to secure judgment under s31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospects of success. This judgment may be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established".  5 The hearing of the CBA's application proceeded over a part of each of three days: on 11, 17 and 20 December 2007. On the first day I gave Mr Farquhar leave to file and serve an amended notice of motion which relied upon section 31A(2) of the Federal Court of Australia Act as the CBA's primary application and, in the alternative, relied upon O 20 r 5 and O 11 r 16 of the Federal Court Rules . This issue arose during submissions because the CBA's original notice of motion filed on 16 November 2007 made no mention of section 31A of the Federal Court of Australia Act , nor O 11 r 16 of the Federal Court Rules , yet the CBA's written submissions filed on 4 December 2007 relied upon both of these provisions. There is, of course, a significant difference in the nature and effect of an application under section 31A of the Federal Court of Australia Act on the one hand, and an application under O 20 r 5, or O 11 r 16, on the other. The former application strikes at the heart of the whole proceedings and, if successful, can only result in a judgment to the opposite party, whereas the latter type of application is usually directed to the way in which the case has been pleaded and more often than not, dealt with by allowing the offending party to file an amended pleading: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] to [21] per French J. </sentence>
<sentence from="[2008] FCA 55" id="cs33">10 In PZ Cussons (International) Limited v Rosa Dora Imports Pty Ltd [2007] FCA 1642 at [14] Kenny J provides a summary of observations that have been made in relation to the power conferred by s 31A. I gratefully adopt her Honour's summary:

 ... the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J. </sentence>
<sentence from="[2007] FMCA 2104" id="cs34">This is not a case where deficiencies in pleading are asserted which would raise issues such as was seen in Rogers v Asset Loan Co Pty Ltd  Ors [2007] FCA 195 and in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401. The question here, as was discussed by French J in the Fortron case, is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting "the proceeding" or the "part of the proceeding" in issue. In White Industries Aust Ltd v Commissioner of Taxation at [50] Lindgren J said that s.31A of the Federal Court of Australia Act is concerned with the bringing and defending of proceedings, not just with pleadings; with substance not just with form. </sentence>
<sentence from="[2007] FCA 1959" id="cs35">13 Section 31A was inserted on 1 December 2005. The provision strengthens the power of the Court to enter summary judgment where it is satisfied that there are " no reasonable prospects of success ". For this purpose a proceeding or part of a proceeding need not be " hopeless " or " bound to fail ". Section 31A, it has been accepted, introduces a lower standard for strike-outs than that previously laid down by the High Court decisions in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , namely that allegations are " So clearly untenable that they cannot possibly succeed ". See also Hicks v Ruddock [2007] FCA 299 at [12] ---[13], 156 FCR 574. A party can establish that a case has " no reasonable prospects of success " where there is a defect in the pleadings which cannot be cured, or alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: see Fortron Automotive Treatments v Jones [2006] FCA 1401 at [20] per French J. </sentence>
<sentence from="[2007] FMCA 1788" id="cs36">I suggest that the legislature's intention was to lower the bar for summary dismissal below the level that had been fixed. "

See also Paramasivam v University of New South Wales [2007] FCA 875 at [14] ; Genovese v BGC Construction Pty Ltd [2007] FCA 875 at [5] per Gilmour J; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 at [23] per Tracey J. Support can also be found for the statement of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 , where his Honour disagreed with Heerey J's view in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 that "[s]ection 31A was introduced to establish a lower standard for strikeouts". French J considered that s.31A "allows for "judgment" or nothing" at [21]; see also JT Nominees Pty Ltd v Macks [2007] SASC 151 at [81] per Bleby J. A detailed consideration of the operation of s.31A was undertaken by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 where his Honour reviewed several relevant authorities and stated at [44]-[45]:

 "In a case to which s.31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.</sentence>
<sentence from="[2007] FCA 1642" id="cs37">14 At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J. </sentence>
<sentence from="[2007] FCA 1253" id="cs38">

8 In the case of Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 , French J observed at [20]:

 In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established.

 </sentence>
<sentence from="[2007] FMCA 1360" id="cs39">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] SASC 151" id="cs40">General Steel Industries Inc v Commissioner for Railways (NSW)  Ors [1964] HCA 69 ; [1964] HCA 69 ; (1964) 112 CLR 125 ; Fancourt  Anor v Mercantile Credits Limited [1983] HCA 25 ; (1983) 154 CLR 87 , distinguished. Gray v Morris [2004] QCA 5 ; [2004] 2 QdR 118 , not followed. 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. French J disagreed with that approach in Fortron Automotive Treatments Pty Ltd v Jones (No 2) . [64] If Heerey J was merely speaking of striking out pleadings, and it appears that he was, then I respectfully agree with French J. Section 31A of the Federal Court of Australia Act is not directed to striking out pleadings or to dismissing an action where the pleading discloses no reasonable cause of action. Nevertheless, the observations of Heerey J are, with respect, correct insofar so as they apply to a summary judgment application under s 31A. </sentence>
<sentence from="[2007] FCA 511" id="cs41">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="cs42">Further guidance was provided by French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 (decided on 27 October 2006) at [19]-[21].</sentence>
<sentence from="[2007] FCA 195" id="cs43"/>
<sentence from="[2007] FMCA 145" id="cs44">2) [2006] FCA 1401 (" Fortron (No.</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">MIGRATION ACT 1958 </title>
<title id="l3">TRADE PRACTICES ACT 1974 </title>
<title id="l4">TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 52 Misleading or deceptive conduct.</title>
<title id="l5">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>