Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1624">migration</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1624">judicial review</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1624">non-attendance by appellant at hearing</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1624">where medical certificate provided in support of adjournment did not provide sufficient basis for the grant of an adjournment</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1624">power to dismiss appeal in accordance with s 25(2b)(bb)(ii) of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 1147">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 1147">applicant filed original application seeking order of review and damages</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 1147">grounds of relief in application flawed</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 1147">leave granted to amend application</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 1147">amended application sought claim in negligence and misfeasance in public office</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCA 1147">no live decision to review</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCA 1147">opportunity provided to further amend application and statement of claim</citphrase>
<citphrase id="cp1.7">cited from="[2006] FCA 1147">leave refused</citphrase>
<citphrase id="cp1.8">cited from="[2006] FCA 1147">leave granted to file fresh amended application and statement of claim</citphrase>
<citphrase id="cp1.9">cited from="[2006] FCA 1147">respondents indicated deficiencies in amended statement of claim</citphrase>
<citphrase id="cp1.10">cited from="[2006] FCA 1147">leave granted to amend statement of claim</citphrase>
<citphrase id="cp1.11">cited from="[2006] FCA 1147">notice of motion</citphrase>
<citphrase id="cp1.12">cited from="[2006] FCA 1147">whether claims made against first and third respondents disclose reasonable cause of action</citphrase>
<citphrase id="cp1.13">cited from="[2006] FCA 1147">s 31a federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp1.14">cited from="[2006] FCA 1147">whether amended statement of claim internally contradictory and embarrassing</citphrase>
<citphrase id="cp1.15">cited from="[2006] FCA 1147">o 11 r 16 federal court rules</citphrase>
<citphrase id="cp1.16">cited from="[2006] FCA 1147">application dismissed.</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 1476">practice and procedure</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 1476">application for summary disposal under federal court rules o 20 r 2</citphrase>
<citphrase id="cp2.2">cited from="[2005] FCA 1476">frivolity</citphrase>
<citphrase id="cp2.3">cited from="[2005] FCA 1476">abuse of process</citphrase>
<citphrase id="cp2.4">cited from="[2005] FCA 1476">no reasonable cause of action</citphrase>
<citphrase id="cp2.5">cited from="[2005] FCA 1476">previous litigation</citphrase>
<citphrase id="cp2.6">cited from="[2005] FCA 1476">proceeding dismissed</citphrase>
<citphrase id="cp2.7">cited from="[2005] FCA 1476">possibility of order pursuant to o 21 raised.</citphrase>
<citphrase id="cp4.0">cited from="[2003] HCA 2">plaintiff s157/2002 v commonwealth of australia  statutes</citphrase>
<citphrase id="cp4.1">cited from="[2003] HCA 2">construction</citphrase>
<citphrase id="cp4.2">cited from="[2003] HCA 2">privative clauses</citphrase>
<citphrase id="cp4.3">cited from="[2003] HCA 2">whether the decision by the refugee review tribunal affirming the decision of a delegate of the minister for immigration and multicultural and indigenous affairs refusing the plaintiff's application for a protection visa is a "privative clause decision" within s 474 of the migration act 1958 (cth) ("the act ")</citphrase>
<citphrase id="cp4.4">cited from="[2003] HCA 2">whether s 474(1) of the act is construed as ousting judicial review by the high court.  constitutional law (cth)</citphrase>
<citphrase id="cp4.5">cited from="[2003] HCA 2">whether s 474 and s 486a of the act are invalid</citphrase>
<citphrase id="cp4.6">cited from="[2003] HCA 2">whether s 474(1)(c) of the act is directly inconsistent with s 75 of the constitution</citphrase>
<citphrase id="cp4.7">cited from="[2003] HCA 2">whether s 474(1)(a) and (b) of the act are inseparable from s 474(1)(c) of the act and are consequently invalid</citphrase>
<citphrase id="cp4.8">cited from="[2003] HCA 2">whether s 486a of the act will apply to a "decision" when there has been jurisdictional error</citphrase>
<citphrase id="cp4.9">cited from="[2003] HCA 2">whether s 486a of the act is a law incidental to the legislative power conferred by ss 51(xix) , (xxvii), (xxix) of the constitution</citphrase>
<citphrase id="cp4.10">cited from="[2003] HCA 2">whether s 486a of the act is within the express incidental power conferred by s 51 (xxxix) of the constitution</citphrase>
<citphrase id="cp4.11">cited from="[2003] HCA 2">whether s 486a of the act is inconsistent with s 75(v) of the constitution .   immigration</citphrase>
<citphrase id="cp4.12">cited from="[2003] HCA 2">refugee review tribunal</citphrase>
<citphrase id="cp4.13">cited from="[2003] HCA 2">whether decision affirming the decision of a delegate of the minister refusing application for a protection visa is a "privative clause decision" within s 474 of the act</citphrase>
<citphrase id="cp4.14">cited from="[2003] HCA 2">whether s 474(1) of the act ousts judicial review by the high court pursuant to s 75 of the constitution</citphrase>
<citphrase id="cp4.15">cited from="[2003] HCA 2">whether s 486a of the act is constitutionally valid.</citphrase>
<citphrase id="cp7.0">cited from="[1994] FCA 1199">practice and procedure</citphrase>
<citphrase id="cp7.1">cited from="[1994] FCA 1199">summary dismissal</citphrase>
<citphrase id="cp7.2">cited from="[1994] FCA 1199">res judicata and 'anshun' estoppel</citphrase>
<citphrase id="cp7.3">cited from="[1994] FCA 1199">whether applies to failure to raise a cross-claim</citphrase>
<citphrase id="cp7.4">cited from="[1994] FCA 1199">whether matters pleaded to set aside a bankruptcy notice should have been raised in proceedings that created the original debt   practice and procedure</citphrase>
<citphrase id="cp7.5">cited from="[1994] FCA 1199">motion for summary dismissal of motion for summary dismissal on ground that written submissions of respondent not filed or served by date ordered by court</citphrase>
<citphrase id="cp7.6">cited from="[1994] FCA 1199">lodged with associate on time</citphrase>
<citphrase id="cp7.7">cited from="[1994] FCA 1199">served one working day late</citphrase>
<citphrase id="cp7.8">cited from="[1994] FCA 1199">no prejudice</citphrase>
<citphrase id="cp8.0">cited from="[1993] FCA 342">estoppel; judgments and orders</citphrase>
<citphrase id="cp8.1">cited from="[1993] FCA 342">res judicata and issue estoppel</citphrase>
<citphrase id="cp8.2">cited from="[1993] FCA 342">abuse of process</citphrase>
<citphrase id="cp8.3">cited from="[1993] FCA 342">principle in port of melbourne authority v. anshun proprietary limited</citphrase>
<citphrase id="cp8.4">cited from="[1993] FCA 342">whether dismissal of a company's action based on s. 52 of the trade practices act created a res judicata binding directors and shareholders and other companies associated with the plaintiff, who had in various ways promoted its action, so as to estop them from maintaining separate actions under s. 52 for damage claimed to have been suffered by reliance on the same representations which founded the first action</citphrase>
<citphrase id="cp8.5">cited from="[1993] FCA 342">discussion of res judicata as a defence requiring to be raised by the pleading of appropriate facts</citphrase>
<citphrase id="cp8.6">cited from="[1993] FCA 342">whether a defence of res judicata may be raised by a motion for dismissal or a stay of proceedings</citphrase>
<citphrase id="cp8.7">cited from="[1993] FCA 342">principles relating to the pleading of such a defence</citphrase>
<citphrase id="cp8.8">cited from="[1993] FCA 342">whether any matter necessarily decided in the first action created an estoppel against the applicants in the later action</citphrase>
<citphrase id="cp8.9">cited from="[1993] FCA 342">whether the applicants in the later action were privies of the plaintiff in the first action</citphrase>
<citphrase id="cp8.10">cited from="[1993] FCA 342">examination of the doctrine of privity for the purposes of res judicata and issue estoppel</citphrase>
<citphrase id="cp8.11">cited from="[1993] FCA 342">principle that there is no discretion in respect of an estoppel if it is actually applicable</citphrase>
<citphrase id="cp8.12">cited from="[1993] FCA 342">reciprocity of estoppels</citphrase>
<citphrase id="cp8.13">cited from="[1993] FCA 342">whether american authorities dealing with collateral estoppel and extending the doctrine of res judicata are applicable in australia</citphrase>
<citphrase id="cp8.14">cited from="[1993] FCA 342">application of principles of res judicata and issue estoppel to consent judgments.  evidence</citphrase>
<citphrase id="cp8.15">cited from="[1993] FCA 342">whether unverified pleadings in an action can be used as admissions.</citphrase>
<citphrase id="cp9.0">cited from="[1990] HCA 3">income tax</citphrase>
<citphrase id="cp9.1">cited from="[1990] HCA 3">assessment</citphrase>
<citphrase id="cp9.2">cited from="[1990] HCA 3">appeal</citphrase>
<citphrase id="cp9.3">cited from="[1990] HCA 3">whether assessment excessive</citphrase>
<citphrase id="cp9.4">cited from="[1990] HCA 3">burden of proof on taxpayer</citphrase>
<citphrase id="cp9.5">cited from="[1990] HCA 3">error by commissioner in adopting basis of assessment</citphrase>
<citphrase id="cp9.6">cited from="[1990] HCA 3">whether need to establish that tax assessed exceeds actual liability</citphrase>
<citphrase id="cp9.7">cited from="[1990] HCA 3">income tax assessment act 1936 (cth), ss. 166 , 167 (b), 177 (1), 190(b).</citphrase>
<citphrase id="cp10.0">cited from="[1981] HCA 45">estoppel</citphrase>
<citphrase id="cp10.1">cited from="[1981] HCA 45">res judicata</citphrase>
<citphrase id="cp10.2">cited from="[1981] HCA 45">issue estoppel</citphrase>
<citphrase id="cp10.3">cited from="[1981] HCA 45">hire of plant</citphrase>
<citphrase id="cp10.4">cited from="[1981] HCA 45">contractual indemnity by hirer against loss caused to owner from use of plant</citphrase>
<citphrase id="cp10.5">cited from="[1981] HCA 45">action for damages against hirer and owner arising out of use of plant</citphrase>
<citphrase id="cp10.6">cited from="[1981] HCA 45">notices of contribution between hirer and owner</citphrase>
<citphrase id="cp10.7">cited from="[1981] HCA 45">claim of contribution by owner</citphrase>
<citphrase id="cp10.8">cited from="[1981] HCA 45">apportionment of liability between defendants</citphrase>
<citphrase id="cp10.9">cited from="[1981] HCA 45">subsequent action by owner for indemnity</citphrase>
<citphrase id="cp10.10">cited from="[1981] HCA 45">whether estopped by failure in original action to plead indemnity in defence to the claim for contribution</citphrase>
<citphrase id="cp10.11">cited from="[1981] HCA 45">wrongs act 1958 (vict.) s. 24 (1) (c).</citphrase>
<citphrase id="cp11.0">cited from="[1964] HCA 69">practice</citphrase>
<citphrase id="cp11.1">cited from="[1964] HCA 69">summary power to terminate action</citphrase>
<citphrase id="cp11.2">cited from="[1964] HCA 69">principles applicable</citphrase>
<citphrase id="cp11.3">cited from="[1964] HCA 69">inherent jurisdiction</citphrase>
<citphrase id="cp11.4">cited from="[1964] HCA 69">jurisdiction under rule of court</citphrase>
<citphrase id="cp11.5">cited from="[1964] HCA 69">high court rules, o. 26, r. 18.  patents</citphrase>
<citphrase id="cp11.6">cited from="[1964] HCA 69">invention</citphrase>
<citphrase id="cp11.7">cited from="[1964] HCA 69">use for services of commonwealth or state</citphrase>
<citphrase id="cp11.8">cited from="[1964] HCA 69">"authority of the state"</citphrase>
<citphrase id="cp11.9">cited from="[1964] HCA 69">commissioner for railways</citphrase>
<citphrase id="cp11.10">cited from="[1964] HCA 69">construction of carriages for use in state railway system</citphrase>
<citphrase id="cp11.11">cited from="[1964] HCA 69">"services of the state"</citphrase>
<citphrase id="cp11.12">cited from="[1964] HCA 69">written authority to use invention</citphrase>
<citphrase id="cp11.13">cited from="[1964] HCA 69">when contract itself sufficient authority</citphrase>
<citphrase id="cp11.14">cited from="[1964] HCA 69">patents act 1952-1960 (cth), ss. 125, 132*.</citphrase>
<citphrase id="cp14.0">citing from="[2010] FCA 544">practice and procedure</citphrase>
<citphrase id="cp14.1">citing from="[2010] FCA 544">summary judgment application made by respondent</citphrase>
<citphrase id="cp14.2">citing from="[2010] FCA 544">defence raised by respondent under s 123 of trade marks act 1995 (cth)</citphrase>
<citphrase id="cp14.3">citing from="[2010] FCA 544">moving party bears the onus in a summary judgment application</citphrase>
<citphrase id="cp14.4">citing from="[2010] FCA 544">consideration of the test under s 31a of federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp14.5">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="cp14.6">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="cp14.7">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="cp14.8">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="cp14.9">citing from="[2010] FCA 544">security for costs application made by respondent</citphrase>
<citphrase id="cp14.10">citing from="[2010] FCA 544">applicant admitted to being impecunious</citphrase>
<citphrase id="cp14.11">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="cp14.12">citing from="[2010] FCA 544">staged payments found to be the best way to deal with the application</citphrase>
<citphrase id="cp15.0">citing from="[2010] FCA 264">practice and procedure</citphrase>
<citphrase id="cp15.1">citing from="[2010] FCA 264">strike out application</citphrase>
<citphrase id="cp15.2">citing from="[2010] FCA 264">s 31a federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp15.3">citing from="[2010] FCA 264">moving party bears the onus of proving the other party has no reasonable prospects of success</citphrase>
<citphrase id="cp15.4">citing from="[2010] FCA 264">consideration of the standard to be applied when question of law involved</citphrase>
<citphrase id="cp15.5">citing from="[2010] FCA 264">there must be a real question of law and one that is sufficiently strong to warrant a full hearing  defence and war</citphrase>
<citphrase id="cp15.6">citing from="[2010] FCA 264">veterans' entitlements</citphrase>
<citphrase id="cp15.7">citing from="[2010] FCA 264">statements of principles</citphrase>
<citphrase id="cp15.8">citing from="[2010] FCA 264">effect when deciding claim relating to operational service</citphrase>
<citphrase id="cp15.9">citing from="[2010] FCA 264">consideration of the deledio approach</citphrase>
<citphrase id="cp15.10">citing from="[2010] FCA 264">whether hypothesis of claimant a reasonable one and consistent with the relevant statement of principles</citphrase>
<citphrase id="cp15.11">citing from="[2010] FCA 264">the tribunal is not to engage in any fact finding at this 'third' step</citphrase>
<citphrase id="cp15.12">citing from="[2010] FCA 264">no onus of proof involved</citphrase>
<citphrase id="cp17.0">citing from="[2009] FCA 332">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2009] FCA 332">pleadings</citphrase>
<citphrase id="cp17.2">citing from="[2009] FCA 332">summary judgment and strike out</citphrase>
<citphrase id="cp17.3">citing from="[2009] FCA 332">requirements of 'no reasonable prospect of success'</citphrase>
<citphrase id="cp17.4">citing from="[2009] FCA 332">whether a strike out is more appropriate than summary judgment</citphrase>
<citphrase id="cp17.5">citing from="[2009] FCA 332">s 31a federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp17.6">citing from="[2009] FCA 332">o 11 r 16 federal court rules (cth)   intellectual property</citphrase>
<citphrase id="cp17.7">citing from="[2009] FCA 332">copyright</citphrase>
<citphrase id="cp17.8">citing from="[2009] FCA 332">facts necessary to give rise to a claim of conversion</citphrase>
<citphrase id="cp17.9">citing from="[2009] FCA 332">whether there is an 'infringing copy'</citphrase>
<citphrase id="cp17.10">citing from="[2009] FCA 332">s 116 copyright act 1968 (cth)   practice and procedure</citphrase>
<citphrase id="cp17.11">citing from="[2009] FCA 332">costs</citphrase>
<citphrase id="cp17.12">citing from="[2009] FCA 332">whether both parties were partially successful</citphrase>
<citphrase id="cp17.13">citing from="[2009] FCA 332">whether costs should be awarded to a party</citphrase>
<citphrase id="cp19.0">citing from="[2008] FMCA 1374">bankruptcy</citphrase>
<citphrase id="cp19.1">citing from="[2008] FMCA 1374">application to review decision or conduct of a trustee in the administration of a bankrupt estate</citphrase>
<citphrase id="cp19.2">citing from="[2008] FMCA 1374">sale of real estate</citphrase>
<citphrase id="cp19.3">citing from="[2008] FMCA 1374">trustee permitting asserted secured creditor to take residue of the proceeds of the sale</citphrase>
<citphrase id="cp19.4">citing from="[2008] FMCA 1374">security later undermined by decision of the supreme court in separate proceedings</citphrase>
<citphrase id="cp19.5">citing from="[2008] FMCA 1374">whether the trustee responsible for any loss to unsecured creditors considered.  practice and procedure</citphrase>
<citphrase id="cp19.6">citing from="[2008] FMCA 1374">interlocutory dismissal of application</citphrase>
<citphrase id="cp19.7">citing from="[2008] FMCA 1374">no reasonable prospect of success.</citphrase>
<citphrase id="cp20.0">citing from="[2008] FCA 1381">human rights</citphrase>
<citphrase id="cp20.1">citing from="[2008] FCA 1381">written complaint lodged with human rights and equal opportunity commission alleging unlawful discrimination</citphrase>
<citphrase id="cp20.2">citing from="[2008] FCA 1381">termination of complaint pursuant to s 46ph of the human rights and equal opportunity commission act 1986 (cth)</citphrase>
<citphrase id="cp20.3">citing from="[2008] FCA 1381">application made to this court for relief pursuant to s 46po of the hreoc act</citphrase>
<citphrase id="cp20.4">citing from="[2008] FCA 1381">different parties named to complaint</citphrase>
<citphrase id="cp20.5">citing from="[2008] FCA 1381">in part different conduct the subject of the terminated complaint</citphrase>
<citphrase id="cp20.6">citing from="[2008] FCA 1381">question of striking out claims based on different parties and the different conduct practice and procedure</citphrase>
<citphrase id="cp20.7">citing from="[2008] FCA 1381">summary judgment application and strike out application</citphrase>
<citphrase id="cp20.8">citing from="[2008] FCA 1381">relevant principles for each</citphrase>
<citphrase id="cp20.9">citing from="[2008] FCA 1381">claim against non-parties to hreoc complaint before the commission struck out</citphrase>
<citphrase id="cp20.10">citing from="[2008] FCA 1381">elements of claim which were not the same or arising out of the same or substantially the same acts also struck out</citphrase>
<citphrase id="cp20.11">citing from="[2008] FCA 1381">leave to amend</citphrase>
<citphrase id="cp21.0">citing from="[2008] FMCA 947">trade practices</citphrase>
<citphrase id="cp21.1">citing from="[2008] FMCA 947">whether conduct in trade or commence.  trade practices</citphrase>
<citphrase id="cp21.2">citing from="[2008] FMCA 947">whether conduct capable of being misleading or deceptive.  trade practices</citphrase>
<citphrase id="cp21.3">citing from="[2008] FMCA 947">unconscionable conduct</citphrase>
<citphrase id="cp21.4">citing from="[2008] FMCA 947">whether minority shareholding is a special disadvantage.  practice  procedure</citphrase>
<citphrase id="cp21.5">citing from="[2008] FMCA 947">application for summary disposal pursuant to s.17a federal magistrates court act 1999</citphrase>
<citphrase id="cp21.6">citing from="[2008] FMCA 947">principles to be applied.  practice  procedure</citphrase>
<citphrase id="cp21.7">citing from="[2008] FMCA 947">costs</citphrase>
<citphrase id="cp21.8">citing from="[2008] FMCA 947">circumstances where order for indemnity costs appropriate.</citphrase>
<citphrase id="cp22.0">citing from="[2008] FMCAfam 641">family law</citphrase>
<citphrase id="cp22.1">citing from="[2008] FMCAfam 641">binding financial agreement</citphrase>
<citphrase id="cp22.2">citing from="[2008] FMCAfam 641">setting aside.  practice  procedure</citphrase>
<citphrase id="cp22.3">citing from="[2008] FMCAfam 641">summary judgment</citphrase>
<citphrase id="cp22.4">citing from="[2008] FMCAfam 641">whether the applicant has no reasonable prospect of successfully prosecuting his claim considered.</citphrase>
<citphrase id="cp23.0">citing from="[2008] FCA 907">practice and procedure</citphrase>
<citphrase id="cp23.1">citing from="[2008] FCA 907">application alleging discrimination brought by applicant</citphrase>
<citphrase id="cp23.2">citing from="[2008] FCA 907">application by respondents to dismiss the applicant's proceeding as an abuse of process or on the ground that the proceeding is vexatious</citphrase>
<citphrase id="cp23.3">citing from="[2008] FCA 907">where applicant already sought judicial review of two decisions of the second respondent</citphrase>
<citphrase id="cp23.4">citing from="[2008] FCA 907">whether issues said to arise in this proceeding should have been raised in earlier proceeding</citphrase>
<citphrase id="cp23.5">citing from="[2008] FCA 907">whether proceeding brought for a collateral purpose and thereby improper purpose</citphrase>
<citphrase id="cp23.6">citing from="[2008] FCA 907">whether proceeding should be summarily dismissed pursuant to s 31a of the federal court of australia act (1976)</citphrase>
<citphrase id="cp23.7">citing from="[2008] FCA 907">application dismissed.</citphrase>
<citphrase id="cp24.0">citing from="[2008] FCA 60">taxation</citphrase>
<citphrase id="cp24.1">citing from="[2008] FCA 60">scope of privative provisions in the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp24.2">citing from="[2008] FCA 60">review proceedings under s 39b of the judiciary act 1903 (cth) relying on the hickman provisos</citphrase>
<citphrase id="cp24.3">citing from="[2008] FCA 60">review of the commissioner's exercise or failure to exercise his discretion under s 227(3) of the income tax assessment act 1936 (cth) to remit the whole or part of the additional tax payable by a taxpayer under s 226k estoppel</citphrase>
<citphrase id="cp24.4">citing from="[2008] FCA 60">availability of anshun estoppel following the dismissal, under order 35a rule 3(1)(a) of the federal court rules , of an appeal against an appealable objection decision under the taxation administration act 1953 (cth), as a result of an applicant's default by failing to attend a directions hearing</citphrase>
<citphrase id="cp24.5">citing from="[2008] FCA 60">availability of anshun estoppel following recovery proceedings in the supreme court of new south wales</citphrase>
<citphrase id="cp26.0">citing from="[2007] FMCA 1360">administrative law</citphrase>
<citphrase id="cp26.1">citing from="[2007] FMCA 1360">summary dismissal</citphrase>
<citphrase id="cp26.2">citing from="[2007] FMCA 1360">no reasonable prospect of success</citphrase>
<citphrase id="cp26.3">citing from="[2007] FMCA 1360">abuse of process.</citphrase>
<citphrase id="cp27.0">citing from="[2007] FCA 923">bankruptcy</citphrase>
<citphrase id="cp27.1">citing from="[2007] FCA 923">order sought for summary judgment in relation to appellant's notice of appeal</citphrase>
<citphrase id="cp27.2">citing from="[2007] FCA 923">whether appellant has a reasonable prospect of success in the appeal</citphrase>
<citphrase id="cp27.3">citing from="[2007] FCA 923">summary judgment granted</citphrase>
<citphrase id="cp27.4">citing from="[2007] FCA 923">appeal dismissed.</citphrase>
<citphrase id="cp29.0">citing from="[2007] FCA 511">income tax</citphrase>
<citphrase id="cp29.1">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="cp29.2">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="cp29.3">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="cp29.4">citing from="[2007] FCA 511">different ato officer caused a notice to produce the documents to issue to taxpayers</citphrase>
<citphrase id="cp29.5">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="cp29.6">citing from="[2007] FCA 511">application for summary dismissal of proceeding based on suggested incompetency of present application</citphrase>
<citphrase id="cp29.7">citing from="[2007] FCA 511">whether decision to allow access was a "decision of an administrative character made ... under an enactment"</citphrase>
<citphrase id="cp29.8">citing from="[2007] FCA 511">whether guidelines were "an enactment"</citphrase>
<citphrase id="cp29.9">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="cp29.10">citing from="[2007] FCA 511">test for summary dismissal under s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp29.11">citing from="[2007] FCA 511">meaning of "no reasonable prospect of success"</citphrase>
<citphrase id="cp29.12">citing from="[2007] FCA 511">held</citphrase>
<citphrase id="cp30.0">citing from="[2007] FCA 489">practice and procedure</citphrase>
<citphrase id="cp30.1">citing from="[2007] FCA 489">application for summary judgment</citphrase>
<citphrase id="cp30.2">citing from="[2007] FCA 489">applicant alleges breaches of trade practices act 1974 (cth) and breach of contract</citphrase>
<citphrase id="cp30.3">citing from="[2007] FCA 489">applicant seeks summary judgment for damages to be assessed on part of claim only</citphrase>
<citphrase id="cp30.4">citing from="[2007] FCA 489">where applicant alleges an oral agreement between applicant and first respondent</citphrase>
<citphrase id="cp30.5">citing from="[2007] FCA 489">where respondents allege oral agreement with different terms</citphrase>
<citphrase id="cp30.6">citing from="[2007] FCA 489">whether relevant part of claim can be determined with certainty without determination of factual issues at trial</citphrase>
<citphrase id="cp30.7">citing from="[2007] FCA 489">where applicant makes alternative claim for declaratory relief</citphrase>
<citphrase id="cp30.8">citing from="[2007] FCA 489">whether declaratory relief should be granted in the circumstances</citphrase>
<citphrase id="cp30.9">citing from="[2007] FCA 489">whether application for summary judgment should be brought pursuant to o 20 r 1 of the federal court rules or s 31a of the federal court of australia act 1976 (cth). held: terms of agreement cannot finally be determined without determination of factual issues at trial</citphrase>
<citphrase id="cp30.10">citing from="[2007] FCA 489">applicant has not established any loss or damage or causation</citphrase>
<citphrase id="cp30.11">citing from="[2007] FCA 489">establishing loss or damage an essential element of the relevant cause of action</citphrase>
<citphrase id="cp30.12">citing from="[2007] FCA 489">not an appropriate case for declaratory relief</citphrase>
<citphrase id="cp30.13">citing from="[2007] FCA 489">real issue of fact will defeat application for summary judgment under either s 31a of the federal court of australia act or o 20 r 1 of the federal court rules</citphrase>
<citphrase id="cp30.14">citing from="[2007] FCA 489">application dismissed.</citphrase>
<citphrase id="cp31.0">citing from="[2007] FMCA 157">copyright</citphrase>
<citphrase id="cp31.1">citing from="[2007] FMCA 157">alleged breaches of copyright in adult films and confidential customer lists</citphrase>
<citphrase id="cp31.2">citing from="[2007] FMCA 157">alleged breach of confidence in the lists.practice and procedure</citphrase>
<citphrase id="cp31.3">citing from="[2007] FMCA 157">summary judgment</citphrase>
<citphrase id="cp31.4">citing from="[2007] FMCA 157">whether the respondents have a reasonable prospect of successfully defending the claims considered.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 544" id="cs0">It is clear from its terms, particularly subs (3), that s 31A sets a lower standard for applications of this kind than that set by High Court decisions such as General Steel Industries Inc v Commissioner for Railways (N.S.W. ) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 to 130 per Barwick CJ: see Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471 ; [2006] FCA 458 at [6] per Heerey J, Lawrenson Light Metal Die Casting Pty Ltd (In Liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J, Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 ; [2006] FCA 1688 at [26] per Mansfield J, Boston Commercial at [27] per Rares J; Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [4] and [5] per Gilmour J, Jefferson Ford at [124] per Gordon J and Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672 at [21] per Greenwood J. </sentence>
<sentence from="[2010] FCA 264" id="cs1">It is clear from its terms, particularly subsection (3), that s 31A sets a lower standard for strike out applications than that set by High Court decisions such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 to 130 per Barwick CJ: see Duncan v Lipscombe Child Care Services (2006) 150 IR 471 ; [2006] FCA 458 at [5] per Heerey J, Lawrenson Light Metal Die Casting Pty Ltd (In Liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J, Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 at [26] per Mansfield J, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2007) 236 ALR 720 ; [2006] FCA 1352 (" Boston Commercial ") at [27] per Rares J; Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [4] per Gilmour J and Jefferson Ford at [124] per Gordon J. </sentence>
<sentence from="[2009] FCA 1478" id="cs2">It has been acknowledged on several occasions that s 31A "lowers the bar for obtaining summary judgment", the bar having previously been set by authorities such as Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J at [5]. See also, on this point, Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 per Finkelstein J at 381-2; and per Gordon J at 406. The latter authority has also been discussed more recently in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 , where a Full Court of this Court refined the views expressed in Jefferson Ford and emphasised that the power reposed in this Court by s 31A is discretionary, and is to be exercised with an eye to all of the circumstances of the case. The Full Court said, in Kowalski , that:

 [28] It may be observed that the word 'may' in the expression 'may give judgment' in s 31A(1) and s 31A(2) is, in the context in which it is used, permissive, not mandatory.</sentence>
<sentence from="[2009] FCA 332" id="cs3">Section 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires:
 1. identification of the cause of action pleaded;
 2. identification of the pleaded facts said to give rise to that cause of action;
 3. a review of the evidence (if any) tendered in support of the claim for judgment;
 4. identification of the defence pleaded;
 5. identification of any facts pleaded which are said to give rise to the defence; and
 6. a review of the evidence (if any) tendered in defence of the claim.
 </sentence>
<sentence from="[2008] FCA 1667" id="cs4">3 It is relevant, in my opinion, to note that this is an appeal by an unrepresented litigant from a judgment which is founded on the application of s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). As Lander J said in the judgment, the subject of the present appeal, at paragraph 49:

 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. </sentence>
<sentence from="[2008] FMCA 1374" id="cs5">Obviously, there will be cases in which, because of their nature, it is necessary to undergo detailed analysis. However, the assessment of whether there is a reasonable prospect of successfully prosecuting the proceeding must depend upon the evidence and pleading the subject of the application. In Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 at [26] - [29] (decided on 5 December 2006) Mansfield J appeared to support the more liberal approach taken by Wilcox J, although the case was essentially decided on the basis of Anshun estoppel [5] . Further support for the approach taken by Wilcox J can be found in Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 (decided on 15 September 2006) at [9]-[11] per Moore J and Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 (decided 28 April 2006) at [6] per Heerey J. Conversely, support for the approach taken by Rares J can be found in Australian Inernational Pilots Assn v Qantas Airways Ltd [2006] FCA 441 at [23] (decided on 9 November 2006) per Tracey J.</sentence>
<sentence from="[2008] FCA 1381" id="cs6">In considering whether a party has a reasonable prospect of success, the Court need not be satisfied that the proceeding is hopeless or bound to fail (s 31A(2)). In Rana v Commonwealth of Australia [2008] FCA 907 at [49] , Lander J said:
 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said:

 The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.</sentence>
<sentence from="[2008] FMCA 947" id="cs7">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="cs8">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] SASC 158" id="cs9">(4) This section does not limit any powers that the Court has apart from this section.

 Section 31A has been considered on a number of occasions. Most of the decisions concern s 31A(2) and have clearly established the proposition that the test in General Steel is no longer applicable and has been replaced by an easier test for defendants to establish, namely, that the plaintiff has no reasonable prospects of success: Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 at [26] ; White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [54] where Lindgren J has reviewed the authorities; Australian and International Pilots Association v Qantas Airways Ltd ; [2006] FCA 1441 ; (2006) 160 IR 1 at [23] ; Hicks v Ruddock (2007) 156 FCR 574.  Arenson v Arenson [1977] AC 405 ; Baber v Kenwood Manufacturing Co Ltd [1978] 1 Lloyds Rep 175 ; Campbell v Edwards [1976] 1 WLR 403 ; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 ; Gray v Morris [2004] QCA 5 ; [2004] 2 Qd R 118 ; Holt v Cox [1997] NSWSC 144 ; (1997) 23 ACSR 590 ; Swain v Hillman [2001] 1 All ER 91 ; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 , applied. Bernstrom v National Australia Bank Ltd [2002] QCA 231 ; [2003] 1 Qd R 469 ; Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 ; JT Nominees Pty Ltd v Macks [2007] SASC 151 ; (2007) 97 SASR 471 , not followed. Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; (2006) 160 IR 1 ; Beevers v Port Phillip Sea Pilots Pty Ltd [2007] VSC 556 ; Belchier v Reynolds [1825] EngR 32 ; (1754) 3 Keny 87 ; 96 ER 1318 ; Bolton Pharmaceutical Co 100 Ltd v Doncaster Pharmaceuticals Group Ltd [2006] EWCA Civ 661 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 ; Duke Group Ltd (in liq) v Arthur Young (White J, judgment no 2238, unreported, 20 April 1990); Ford Motor Co of Australia Ltd v Jefferson Ford Pty Ltd (2007) ATPR 42-167 ; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ; Grimwade v Beresford (1974) 9 SASR 157 ; Hickman  Co v Roberts [1913] AC 229 ; Hicks v Ruddock (2007) 156 FCR 574 ; Jones v Sherwood Computer Services Plc [1992] 1 WLR 277 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 ; Lawrence v Griffiths (1987) 47 SASR 455 ; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 ; Leasefin Corporation Ltd v Clarke (Full Court, judgment no S3664, unreported, 16 October 1992); Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 ; Macro v Thompson (No 3) (1997) 2 BCLC 36 ; Miller v Garton Shires (a firm) [2006] EWCA Civ 1386 ; Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224 ; [2003] 1 Qd R 259 ; Rich v CGU Insurance Ltd [2005] HCA 16 ; (2005) 214 ALR 370 ; Sutcliffe v Thackrah [1974] AC 727 ; Wallingford v Mutual Society (1880) 5 App Cas 685 ; White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 , considered. CENEAVENUE PTY LTD  ORS v MARTIN  ORS
 [2008] SASC 158

 Full Court Duggan, Debelle and Anderson JJ

 DUGGAN J: I agree with the conclusion reached by Debelle J that the appeal should be allowed, that the orders made by the single judge should be set aside and that, in lieu thereof, there should be an order that the application for summary judgment be dismissed. </sentence>
<sentence from="[2008] FCA 907" id="cs10">49 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said:
 The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case. </sentence>
<sentence from="[2008] FCA 60" id="cs11">109 The present case bears some similarity to the facts in Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; (2006) 65 ATR 222 ('Jewiss'). In that case Mansfield J had before him a motion seeking relief under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and Order 20 rule 2 and Order 16 rule 11 of the Federal Court Rules in a taxation appeal against certain appealable objection decisions. His Honour held that it would be an abuse of the Court's process to permit Mr Jewiss to re-litigate in the proceedings before him the same matters as had previously been determined against him in the South Australian District Court. His Honour considered that, because the issues which Mr Jewiss sought to raise before him were 'the same issues as those he sought to raise in the District Court proceedings and upon which an adjudication adverse to those claims' had been made, there was no scope for the principle of 'Anshun' estoppel to be applied. His Honour said at [51]:

 'It is not a matter of him raising matters now which he did not, but could have, raised in the earlier proceedings. ' </sentence>
<sentence from="[2007] FCA 1257" id="cs12">8 The issue then, is what should be done in respect of the application. As I have said, this is the third occasion upon which this matter has been listed for hearing. It was first listed for hearing, commencing on 24 July 2006. That hearing was abandoned because the applicant wished to extend the nature of his allegations in a way which subsequently I found to be improper. His proposed allegations were dismissed, except for the present claim under Pt IVC of the Taxation Administration Act 1953 (Cth), by judgment delivered on 5 December 2006 in Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688. </sentence>
<sentence from="[2007] FMCA 1360" id="cs13">The question of the precise meaning of s.31A of the FCA Act and s.17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 ; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck  Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s.31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.</sentence>
<sentence from="[2007] FCA 923" id="cs14">4 Section 31A of the Act relaxes the test in relation to which a proceeding may be struck out or summarily dismissed from the test set out in General Steel Industries Inc v Commissioner for Railways (New South Wales) [1964] HCA 69 ; 1964 112 CLR 125. See also Jewiss v DCT [2006] FCA 1688 at 26 per Mansfield J and Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J. The former test as Heerey J said required that the allegations be quite clearly so untenable that they cannot possibly succeed. </sentence>
<sentence from="[2007] FCA 530" id="cs15">38 Section 31A relaxes the test imposed by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 as to the circumstances in which a proceeding may be summarily dismissed: see Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 , at [26]; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 , at [6].</sentence>
<sentence from="[2007] FCA 511" id="cs16">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] FCA 489" id="cs17">9 The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].</sentence>
<sentence from="[2007] FMCA 157" id="cs18">In Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 at [26] - [29] (decided on 5 December 2006) Mansfield J appeared to support the more liberal approach taken by Wilcox J, although the case was essentially decided on the basis of Anshun estoppel [5] .</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">INCOME TAX ASSESSMENT ACT 1936 </title>
<title id="l3">INCOME TAX ASSESSMENT ACT 1936 - SECT 177 Evidence</title>
<title id="l4">JUDICIARY ACT 1903 </title>
<title id="l5">JUDICIARY ACT 1903 - SECT 39B Original jurisdiction of Federal Court of Australia</title>
<title id="l6">TAXATION ADMINISTRATION ACT 1953 </title>
<title id="l7">MIGRATION LITIGATION REFORM ACT 2005 NO. 137, 2005 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCA 42">costs</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCA 42">offer by respondent to settle proceedings before trial</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCA 42">offer rejected by applicants</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCA 42">respondent wholly successful at trial</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCA 42">whether applicants' rejection unreasonable</citphrase>
<citphrase id="cp0.5">cited from="[2008] FCA 42">whether respondent entitled to his costs incurred after rejection of offer on indemnity basis</citphrase>
<citphrase id="cp0.6">cited from="[2008] FCA 42">whether offer conformed to calderbank principle.</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1489">costs</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1489">application for costs on an indemnity basis</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1489">applicants reject a joint offer of compromise pursuant to fcr , o 23</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1489">applicants fail entirely</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 1489">whether rejection of offer imprudent or unreasonable</citphrase>
<citphrase id="cp5.0">cited from="[1998] FCA 699">negligence</citphrase>
<citphrase id="cp5.1">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp5.2">cited from="[1998] FCA 699">asthmatic child suffers brain damage after use of suppository prescribed by general practitioner</citphrase>
<citphrase id="cp5.3">cited from="[1998] FCA 699">whether theophylline contained in suppository caused brain damage</citphrase>
<citphrase id="cp5.4">cited from="[1998] FCA 699">whether trial judge entitled to reject strong views of paediatric pharmacologist based on reports of limited laboratory tests performed on other children</citphrase>
<citphrase id="cp5.5">cited from="[1998] FCA 699">whether trial judge entitled to prefer contrary medical evidence based on clinical experience and reading of medical literature</citphrase>
<citphrase id="cp5.6">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp5.7">cited from="[1998] FCA 699">appeal court should acknowledge such advantage</citphrase>
<citphrase id="cp5.8">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp5.9">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp5.10">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp5.11">cited from="[1998] FCA 699">conflicting evidence as to practice by general medical practitioners at relevant time</citphrase>
<citphrase id="cp5.12">cited from="[1998] FCA 699">trial judge required to choose</citphrase>
<citphrase id="cp5.13">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp5.14">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp5.15">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp5.16">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp5.17">cited from="[1998] FCA 699">asthmatic child suffers brain damage after use of phenobarbitone prescribed by locum to combat effects of prior use of suppository</citphrase>
<citphrase id="cp5.18">cited from="[1998] FCA 699">whether phenobarbitone caused damage</citphrase>
<citphrase id="cp5.19">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp5.20">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp5.21">cited from="[1998] FCA 699">manufacturer's liability</citphrase>
<citphrase id="cp5.22">cited from="[1998] FCA 699">drug contained in suppository</citphrase>
<citphrase id="cp5.23">cited from="[1998] FCA 699">lack of warning as to possible consequences on packaging</citphrase>
<citphrase id="cp5.24">cited from="[1998] FCA 699">doctor prescribing would not have read packaging anyway</citphrase>
<citphrase id="cp5.25">cited from="[1998] FCA 699">causation not established</citphrase>
<citphrase id="cp5.26">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp5.27">cited from="[1998] FCA 699">no error shown. damages</citphrase>
<citphrase id="cp5.28">cited from="[1998] FCA 699">various heads</citphrase>
<citphrase id="cp5.29">cited from="[1998] FCA 699">questions of fact</citphrase>
<citphrase id="cp5.30">cited from="[1998] FCA 699">interest on past component of griffiths v kerkemeyer award to await decision of full court in another pending appeal</citphrase>
<citphrase id="cp5.31">cited from="[1998] FCA 699">otherwise no error shown. appeal</citphrase>
<citphrase id="cp5.32">cited from="[1998] FCA 699">appeal on questions of fact</citphrase>
<citphrase id="cp5.33">cited from="[1998] FCA 699">expert evidence</citphrase>
<citphrase id="cp5.34">cited from="[1998] FCA 699">conflict between opinions of experts</citphrase>
<citphrase id="cp5.35">cited from="[1998] FCA 699">advantage of trial judge</citphrase>
<citphrase id="cp5.36">cited from="[1998] FCA 699">principles applicable.</citphrase>
<citphrase id="cp6.0">cited from="[1993] FCA 536">costs</citphrase>
<citphrase id="cp6.1">cited from="[1993] FCA 536">application that respondent's costs of certain issues be paid on indemnity basis</citphrase>
<citphrase id="cp6.2">cited from="[1993] FCA 536">discussion of applicable principles.</citphrase>
<citphrase id="cp7.0">citing from="[2011] FCAFC 40">damages</citphrase>
<citphrase id="cp7.1">citing from="[2011] FCAFC 40">assessment of damages from cross-claim in relation to misleading or deceptive conduct in breach of s 10 of the fair trading act 1987 (wa) and a breach of duties as a director, including statutory duties under ss 180 and 181 of the corporations law</citphrase>
<citphrase id="cp7.2">citing from="[2011] FCAFC 40">federal court of australia act 1976 (cth) s 43 and federal court rules 1979 (cth) o 62 r 6</citphrase>
<citphrase id="cp7.3">citing from="[2011] FCAFC 40">whether legal costs incurred in defending the primary proceedings are recoverable as damages in the cross-claim</citphrase>
<citphrase id="cp7.4">citing from="[2011] FCAFC 40">whether legal costs incurred in prosecuting the cross-claim are recoverable as damages in the cross-claim</citphrase>
<citphrase id="cp8.0">citing from="[2009] FCA 1494">practice and procedure</citphrase>
<citphrase id="cp8.1">citing from="[2009] FCA 1494">costs</citphrase>
<citphrase id="cp8.2">citing from="[2009] FCA 1494">"calderbank offer"</citphrase>
<citphrase id="cp8.3">citing from="[2009] FCA 1494">discretion to award indemnity costs following refusal of offer of compromise</citphrase>
<citphrase id="cp8.4">citing from="[2009] FCA 1494">reasonableness of refusal of offer in the circumstances   practice and procedure</citphrase>
<citphrase id="cp8.5">citing from="[2009] FCA 1494">costs</citphrase>
<citphrase id="cp8.6">citing from="[2009] FCA 1494">acrimonious termination of long term, cooperative distribution contract</citphrase>
<citphrase id="cp8.7">citing from="[2009] FCA 1494">offer of compromise under order 23 r 11(5) refused</citphrase>
<citphrase id="cp8.8">citing from="[2009] FCA 1494">rebuttable presumption as to indemnity costs</citphrase>
<citphrase id="cp8.9">citing from="[2009] FCA 1494">meaning of "claim" in o 23</citphrase>
<citphrase id="cp8.10">citing from="[2009] FCA 1494">clusters of claims and cross-claims</citphrase>
<citphrase id="cp8.11">citing from="[2009] FCA 1494">clusters to be seen compositely in the circumstances</citphrase>
<citphrase id="cp8.12">citing from="[2009] FCA 1494">exceptional case rebutting presumption of indemnity costs</citphrase>
<citphrase id="cp8.13">citing from="[2009] FCA 1494">costs awarded on only several issues</citphrase>
<citphrase id="cp9.0">citing from="[2009] FCA 1460">costs</citphrase>
<citphrase id="cp9.1">citing from="[2009] FCA 1460">whether the circumstances of the cases justified any issues-based costs orders</citphrase>
<citphrase id="cp9.2">citing from="[2009] FCA 1460">in one case, one issues-based costs order made</citphrase>
<citphrase id="cp9.3">citing from="[2009] FCA 1460">whether any of the respondent parties entitled to indemnity costs</citphrase>
<citphrase id="cp9.4">citing from="[2009] FCA 1460">indemnity costs refused</citphrase>
<citphrase id="cp10.0">citing from="[2009] FCA 803">costs</citphrase>
<citphrase id="cp10.1">citing from="[2009] FCA 803">application for indemnity costs</citphrase>
<citphrase id="cp10.2">citing from="[2009] FCA 803">"walk away" offer of compromise not accepted</citphrase>
<citphrase id="cp10.3">citing from="[2009] FCA 803">what constitutes a genuine offer of compromise</citphrase>
<citphrase id="cp10.4">citing from="[2009] FCA 803">calderbank offer and rules of court</citphrase>
<citphrase id="cp10.5">citing from="[2009] FCA 803">test to be applied</citphrase>
<citphrase id="cp11.0">citing from="[2009] WASCA 115">costs</citphrase>
<citphrase id="cp11.1">citing from="[2009] WASCA 115">indemnity costs</citphrase>
<citphrase id="cp11.2">citing from="[2009] WASCA 115">calderbank offer made by respondent before trial</citphrase>
<citphrase id="cp11.3">citing from="[2009] WASCA 115">offer rejected by appellant</citphrase>
<citphrase id="cp11.4">citing from="[2009] WASCA 115">respondent obtained a better result by judgment after trial</citphrase>
<citphrase id="cp11.5">citing from="[2009] WASCA 115">test for determining whether indemnity costs should be awarded</citphrase>
<citphrase id="cp11.6">citing from="[2009] WASCA 115">whether appellant's rejection of the calderbank offer was unreasonable</citphrase>
<citphrase id="cp12.0">citing from="[2009] FMCA 63">costs</citphrase>
<citphrase id="cp12.1">citing from="[2009] FMCA 63">claim for indemnity costs by successful respondent</citphrase>
<citphrase id="cp12.2">citing from="[2009] FMCA 63">applicant seeking no order as to costs or scale costs order</citphrase>
<citphrase id="cp12.3">citing from="[2009] FMCA 63">consideration of calderbank offers</citphrase>
<citphrase id="cp12.4">citing from="[2009] FMCA 63">consideration of the conduct and nature of the proceedings</citphrase>
<citphrase id="cp12.5">citing from="[2009] FMCA 63">costs awarded on ordinary basis.</citphrase>
<citphrase id="cp13.0">citing from="[2008] FCA 1805">costs</citphrase>
<citphrase id="cp13.1">citing from="[2008] FCA 1805">settlement offer and offer of compromise under o 23 of the federal court rules (cth) purportedly made by respondent/cross-claimant to the applicants/cross-respondents</citphrase>
<citphrase id="cp13.2">citing from="[2008] FCA 1805">applicants/cross-respondents rejected offers</citphrase>
<citphrase id="cp13.3">citing from="[2008] FCA 1805">o 23 r 11(6) not in operation when the purported offer of compromise was rejected</citphrase>
<citphrase id="cp13.4">citing from="[2008] FCA 1805">no presumptive entitlement to indemnity costs under o 23 of the rules</citphrase>
<citphrase id="cp13.5">citing from="[2008] FCA 1805">whether rejection of offers imprudent or unreasonable</citphrase>
<citphrase id="cp13.6">citing from="[2008] FCA 1805">whether applicants/cross-respondents advanced groundless contentions</citphrase>
<citphrase id="cp13.7">citing from="[2008] FCA 1805">no award of indemnity costs</citphrase>
<citphrase id="cp14.0">citing from="[2008] FCA 1628">costs</citphrase>
<citphrase id="cp14.1">citing from="[2008] FCA 1628">indemnity costs</citphrase>
<citphrase id="cp14.2">citing from="[2008] FCA 1628">whether rejection of offer reasonable or prudent</citphrase>
<citphrase id="cp15.0">citing from="[2008] FCA 1526">costs</citphrase>
<citphrase id="cp15.1">citing from="[2008] FCA 1526">indemnity costs</citphrase>
<citphrase id="cp15.2">citing from="[2008] FCA 1526">was rejection of offer reasonable or prudent</citphrase>
<citphrase id="cp15.3">citing from="[2008] FCA 1526">was exaggerated counter offer and cross-claim relevant to a claim for indemnity costs</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCAFC 40" id="cs0">Sirtex, by motion, sought indemnity costs against UWA but without success: University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360. This was a reasonable attempt by Sirtex to mitigate its loss and damage caused by Dr Gray's misleading and deceptive conduct. The costs order made by French J as between UWA and Sirtex did not resolve the question of the damages claimed by Sirtex against Dr Gray on the cross-claim. Viewed in this way no violence is done to the general principle found in Cockburn and other cases. </sentence>
<sentence from="[2009] FCA 1494" id="cs1">The significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at 361; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . </sentence>
<sentence from="[2009] FCA 1460" id="cs2">The notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233---234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152---153 (per Black CJ) and at 156---158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] ---[33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales  Mackenzie) to DLA Phillips Fox dated that day.</sentence>
<sentence from="[2009] FCA 803" id="cs3">This is not the occasion upon which to resolve the difference in approach with respect to Calderbank offers and O 23 offers if for no other reason than the point was not argued. It is sufficient for present purposes to do no more than state my tentative view. So far as an O 23 offer is concerned, I think it does give rise to a presumptive entitlement to indemnity costs: MGICA (1992) Pty Ltd at 240. So far as Calderbank offers are concerned, the weight of authority is to the effect that the key issue is to determine whether rejection of the offer was unreasonable in all the circumstances (see Pollard at [9]; Crump v Equine Nutrition Systems Pty Ltd trading as Horsepower (No 2) [2007] NSWSC 25 at [40] ; Gretton at [16]; Equity 8 Pty Limited at [33]), but not whether the rejection of the offer was "plainly unreasonable" ( University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [36] ). If the matter were not covered by authority, I would hold there to be no difference between an O 23 offer and a Calderbank letter provided the Calderbank offer allows for a reasonable time for acceptance. Each serves precisely the same function, encouraging parties to compromise the dispute. There seems to be no principled reason for there to be a difference between them. </sentence>
<sentence from="[2009] WASCA 115" id="cs4">

26 More recently, in Seven Network Ltd v News Ltd [2007] FCA 1489 ; (2007) 244 ALR 374 , Sackville J said that the policy reasons given in Black for avoiding the word 'plainly' were persuasive [62], and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 , French J observed:

 On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Ltd v News Ltd (2007) 244 ALR 374 ; [2007] FCA 1489 at [62] questioning the utility of substituting a requirement that rejection be 'plainly unreasonable' for the requirement that it be 'unreasonable'. Given the evaluative character of the judgment involved the addition of the word 'plainly' which is itself evaluative, has no useful function [36]. </sentence>
<sentence from="[2009] FMCA 63" id="cs5">In my view, the rejection by Ms Varas of the two offers of compromise was not unreasonable. First, she was entitled to treat both offers as "rolled up" offers inclusive of costs which reduces the weight to be given to their refusal [9] . Secondly, the litigation was complex and (for this Court) drawn out and it took some time for the issues between the parties to be clearly delineated. The parties attempted to negotiate a settlement in good faith on the first day of the trial of this matter and a breach of confidence claim against the psychologist, Ms Nolan, was resolved. It was only then that the scope and the content of the litigation became completely clear. Further, while both parties were at times in default of procedural orders of this Court, the conduct of the proceedings by neither party was such as to either disentitle them to a costs order or call for an award of indemnity costs. </sentence>
<sentence from="[2008] FCA 1805" id="cs6">23 The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network [2007] FCA 1489 ; 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable. </sentence>
<sentence from="[2008] FCA 1628" id="cs7">10 In my view the appropriate disposition is that there be no order as to costs. I cannot say that rejection of the offer was unreasonable within the meaning of s 824. Nor was the application for the stay incompetent or unsupportable. There were good reasons for the stay application to be brought and I have touched on those in Harbour City Real Estate No 1 at [13] and [14]. While there would, in circumstances to which s 824(2) applies, be scope for an award of indemnity costs, the mere fact alone that an offer is made and rejected is not of itself generally regarded as being sufficient to justify an award of indemnity costs. Rather, the rejection of the offer must be unreasonable or imprudent: see Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 ; Seven Network Ltd v News Ltd [2007] FCA 1489 ; (2007) 244 ALR 374 at [59] - [62] , University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] and MGICA v Kenny (1996) 70 FCR 236. </sentence>
<sentence from="[2008] FCA 1526" id="cs8">16 The approach taken in Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [27] - [28], in following the Full Federal Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 was that is necessary to focus on the reasonableness of the conduct of the offeree in rejecting the offer. Insofar as the applicant relies upon a rejection of the offer of compromise, the applicant must demonstrate that the conduct of the respondent was imprudent or unreasonable. However, the cases have also stressed that there is no super added requirement that it show a higher standard of unreasonableness such as 'plainly unreasonable': see Black v Lipovac at [218], Seven Network Ltd v News Ltd [2007] FCA 1489 ; (2007) 244 ALR 374 at [59] - [62] and University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] . </sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 43 Costs</title>
<title id="l2">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCAFC 134">evidence</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCAFC 134">discretion to receive further evidence on the hearing of an appeal migration</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCAFC 134">when does a person cease to be an immigrant</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCAFC 134">consideration of the process of absorption</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCAFC 134">different considerations applicable to adults and children</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCAFC 134">unavailability of s 501(2) of the act to cancel a visa that has not been granted or taken to have been granted</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCAFC 134">proper exercise of discretion to cancel a visa where the holder does not pass the character test within the meaning of s 501(6) procedural fairness</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCAFC 134">allowance of an adequate time for a response to a notice of intention to consider cancellation of an absorbed person visa</citphrase>
<citphrase id="cp1.0">cited from="[2006] HCA 50">minister for immigration and multicultural and indigenous affairs v nystrom  immigration</citphrase>
<citphrase id="cp1.1">cited from="[2006] HCA 50">cancellation of visas</citphrase>
<citphrase id="cp1.2">cited from="[2006] HCA 50">s 501(2) of the migration act 1958 (cth) ("the act ")</citphrase>
<citphrase id="cp1.3">cited from="[2006] HCA 50">where minister purported to cancel a "transitional (permanent) visa" on the basis of the respondent failing the character test in s 501(6) of the act</citphrase>
<citphrase id="cp1.4">cited from="[2006] HCA 50">where respondent had a substantial criminal record</citphrase>
<citphrase id="cp1.5">cited from="[2006] HCA 50">where respondent had lived in australia since he was 27 days old</citphrase>
<citphrase id="cp1.6">cited from="[2006] HCA 50">where respondent held an "absorbed person visa"</citphrase>
<citphrase id="cp1.7">cited from="[2006] HCA 50">whether the respondent also held a "transitional (permanent) visa"</citphrase>
<citphrase id="cp1.8">cited from="[2006] HCA 50">whether as a matter of construction the act allowed the respondent to hold both an "absorbed person visa" and a "transitional (permanent) visa".  administrative law</citphrase>
<citphrase id="cp1.9">cited from="[2006] HCA 50">decision of minister under s 501(2) or s 503 of the act</citphrase>
<citphrase id="cp1.10">cited from="[2006] HCA 50">jurisdictional error</citphrase>
<citphrase id="cp1.11">cited from="[2006] HCA 50">whether there was a misdescription of a visa which invalidated the minister's decision</citphrase>
<citphrase id="cp1.12">cited from="[2006] HCA 50">whether a failure to take into account relevant considerations invalidated a decision</citphrase>
<citphrase id="cp1.13">cited from="[2006] HCA 50">whether the minister's cancellation of a "transitional (permanent) visa" and disregard of the "absorbed person visa" amounted to jurisdictional error</citphrase>
<citphrase id="cp1.14">cited from="[2006] HCA 50">where s 501f(3) would operate to cancel both visas.  statutes</citphrase>
<citphrase id="cp1.15">cited from="[2006] HCA 50">statutory construction</citphrase>
<citphrase id="cp1.16">cited from="[2006] HCA 50">expressum facit cessare tacitum</citphrase>
<citphrase id="cp1.17">cited from="[2006] HCA 50">where s 201 of the act excludes certain persons from the scope of the minister's power to deport pursuant to s 200 of the act</citphrase>
<citphrase id="cp1.18">cited from="[2006] HCA 50">where the respondent was a person covered by s 201 and also not an object of the power to deport pursuant to s 200</citphrase>
<citphrase id="cp1.19">cited from="[2006] HCA 50">whether s 201 of the act confers a protection against deportation</citphrase>
<citphrase id="cp1.20">cited from="[2006] HCA 50">whether the subject matter of ss 200 , 201 and 501 of the act is the same, dealing with the removal of persons who have been convicted of offences from australia</citphrase>
<citphrase id="cp1.21">cited from="[2006] HCA 50">whether the minister's lack of power to deport the respondent under s 200 limits the minister's power to cancel a visa under s 501</citphrase>
<citphrase id="cp1.22">cited from="[2006] HCA 50">whether s 501 repugnant to ss 200 and 201 so as to necessitate s 501 being read subject to ss 200 and 201 .</citphrase>
<citphrase id="cp4.0">citing from="[2008] FCAFC 132">migration law</citphrase>
<citphrase id="cp4.1">citing from="[2008] FCAFC 132">appeal from decision of single judge of the court</citphrase>
<citphrase id="cp4.2">citing from="[2008] FCAFC 132">amendment to raise issues not before trial judge</citphrase>
<citphrase id="cp4.3">citing from="[2008] FCAFC 132">applicant british subject migrated to australia as child with family in 1954 prior to commencement of the migration act 1958 (cth)</citphrase>
<citphrase id="cp4.4">citing from="[2008] FCAFC 132">applicant remained in australia at all times after entry but is not an australian citizen</citphrase>
<citphrase id="cp4.5">citing from="[2008] FCAFC 132">respondent minister purported to cancel on character grounds a transitional (permanent) visa said to be held by applicant</citphrase>
<citphrase id="cp4.6">citing from="[2008] FCAFC 132">whether applicant was the "holder" of a transitional (permanent) visa as sought to be cancelled</citphrase>
<citphrase id="cp4.7">citing from="[2008] FCAFC 132">whether a transitional (permanent) visa is "granted" for purposes of s 501(2) migration act so as to be susceptible of cancellation</citphrase>
<citphrase id="cp4.8">citing from="[2008] FCAFC 132">whether minister purported to cancel absorbed person visa directly</citphrase>
<citphrase id="cp4.9">citing from="[2008] FCAFC 132">appeal allowed though without identification of error on the part of the trial judge</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FCAFC 132" id="cs0">

91 In Kostopoulos v Minister for Immigration and Citizenship [2008] FCA 855 a judge of this Court declined to follow Moore . He concluded that the power in s 501(2);
 'was plainly intended to authorise the Minister to cancel whatever visa was held by a person who the Minister thought ought no longer be able to remain in Australia having regard to that person's character. '
and:
 'I have no doubt that the powers intended to be exercised in relation to any visa and that the words "that has been granted" were not intended to condition or limit the power. '  19 In our opinion, what cannot be done is to construe s 501(2) as if it had been amended in some relevant respect. In our respectful opinion, Moore J fell into that error by excising the words "that has been granted" from the section. Purposive construction does not authorise the Court to constructively amend legislation to give effect to its idea of what Parliament might have had in mind. As was said by Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518:
 "It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. "
 Kostopoulos [2008] FCA 855 was wrongly decided. We should add, for the sake of completeness, that the observations of the Court in Moore v Minister for Immigration and Citizenship [2007] FCAFC 134 ; (2007) 161 FCR 236 at [42] ---[45] are properly to be regarded as obiter dicta.  16 The only decision of this Court which has addressed this argument directly is that of Moore J in Kostopoulos v Minister for Immigration and Citizenship [2008] FCA 855. The critical reasoning of that decision is as follows (at [35]---[36]):
 "However, I am firmly convinced that the power to cancel conferred by s 501 was intended to be exercisable in relation to a transitional (permanent) visa. In this case, the applicant held such a visa because he had been originally granted an entry permit.</sentence>
</citances>
<legistitles>
<title id="l0">JUDICIARY ACT 1903 </title>
<title id="l1">JUDICIARY ACT 1903 - SECT 39B Original jurisdiction of Federal Court of Australia</title>
<title id="l2">MIGRATION ACT 1958 </title>
<title id="l3">MIGRATION ACT 1958 - SECT 31 Classes of visas</title>
<title id="l4">MIGRATION ACT 1958 - SECT 34 Absorbed person visas</title>
<title id="l5">MIGRATION ACT 1958 - SECT 476A Limited jurisdiction of the Federal Court</title>
<title id="l6">MIGRATION ACT 1958 - SECT 477A Time limits on applications to the Federal Court</title>
<title id="l7">MIGRATION ACT 1958 - SECT 501 Refusal or cancellation of visa on character grounds</title>
<title id="l8">MIGRATION LEGISLATION AMENDMENT ACT 1989 </title>
<title id="l9">FEDERAL COURT RULES </title>
<title id="l10">MIGRATION REGULATIONS 1994 </title>
<title id="l11">MIGRATION (OFFENCES AND UNDESIRABLE PERSONS) AMENDMENT ACT 1992 </title>
<title id="l12">MIGRATION LEGISLATION AMENDMENT ACT 1994 </title>
<title id="l13">MIGRATION REFORM ACT 1992 </title>
<title id="l14">MIGRATION REFORM ACT 1992 No. 184, 1992 - SECT 40 Transitional-application</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCA 956">corporations</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 956">prospectus for the offer of unsecured convertible notes</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 956">failure to apply to asx for quotation within seven days after date of prospectus as the result of inadvertence due to illness</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 956">underwriter consents to application</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 956">no objection by asic or asx</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCA 956">no substantial injustice has been, or is likely to be, caused to any person if the relief is granted</citphrase>
<citphrase id="cp4.0">citing from="[2010] NSWSC 1438">corporations</citphrase>
<citphrase id="cp4.1">citing from="[2010] NSWSC 1438">offers of securities requiring disclosure</citphrase>
<citphrase id="cp4.2">citing from="[2010] NSWSC 1438">securities issued without disclosure</citphrase>
<citphrase id="cp4.3">citing from="[2010] NSWSC 1438">disclosure obligation in respect of subsequent offers for sale</citphrase>
<citphrase id="cp4.4">citing from="[2010] NSWSC 1438">securities quoted on asx</citphrase>
<citphrase id="cp4.5">citing from="[2010] NSWSC 1438">issuer fails to lodge notice with asx within five business days</citphrase>
<citphrase id="cp4.6">citing from="[2010] NSWSC 1438">notice later lodged</citphrase>
<citphrase id="cp4.7">citing from="[2010] NSWSC 1438">persons offering for sale exposed to liability for non-disclosure</citphrase>
<citphrase id="cp4.8">citing from="[2010] NSWSC 1438">evidence shows that lateness of notice did not cause any material matter to be withheld from the market</citphrase>
<citphrase id="cp4.9">citing from="[2010] NSWSC 1438">validating orders warranted</citphrase>
<citphrase id="cp6.0">citing from="[2010] FCA 40">corporations</citphrase>
<citphrase id="cp6.1">citing from="[2010] FCA 40">offers of sale and sale of placement options</citphrase>
<citphrase id="cp6.2">citing from="[2010] FCA 40">obligation of disclosure-failure to disclose</citphrase>
<citphrase id="cp6.3">citing from="[2010] FCA 40">acquisition of shares invalid</citphrase>
<citphrase id="cp6.4">citing from="[2010] FCA 40">seeking declaratory relief</citphrase>
<citphrase id="cp6.5">citing from="[2010] FCA 40">each case to be decided on its merits</citphrase>
<citphrase id="cp6.6">citing from="[2010] FCA 40">applicant acted honestly</citphrase>
<citphrase id="cp6.7">citing from="[2010] FCA 40">no substantial injustice to third parties</citphrase>
<citphrase id="cp6.8">citing from="[2010] FCA 40">declaratory relief granted</citphrase>
<citphrase id="cp8.0">citing from="[2009] FCA 1236">corporations law</citphrase>
<citphrase id="cp8.1">citing from="[2009] FCA 1236">application for order under s 1322(4)(a) and (d) of the corporations act 2001 (cth) extending the time for the company to give notice of share placement in accordance with s 708a(5) and (6)</citphrase>
<citphrase id="cp8.2">citing from="[2009] FCA 1236">whether failure to issue notice due to inadvertence</citphrase>
<citphrase id="cp8.3">citing from="[2009] FCA 1236">whether substantial injustice to any party</citphrase>
<citphrase id="cp9.0">citing from="[2009] FCA 1130">corporations law</citphrase>
<citphrase id="cp9.1">citing from="[2009] FCA 1130">application for order under s 1322(4)(a) and (d) of the corporations act 2001 (cth) extending the time for the company to give notice of share placement in accordance with s 708a(5) and (6)</citphrase>
<citphrase id="cp9.2">citing from="[2009] FCA 1130">whether failure to issue notice due to inadvertence</citphrase>
<citphrase id="cp9.3">citing from="[2009] FCA 1130">whether substantial injustice to any party</citphrase>
<citphrase id="cp10.0">citing from="[2009] NSWSC 660">corporations</citphrase>
<citphrase id="cp10.1">citing from="[2009] NSWSC 660">application for an order under s 1322(4)(d) of the corporations act 2001 (cth) extending the time for a company to give notice of share placement in accordance with disclosure requirements of s 708a(5) and (6)</citphrase>
</citphrases>
<citances>
<sentence from="[2010] NSWSC 1438" id="cs0">23 In this respect, the circumstances of this case are relevantly the same as (or similar to) those considered in a number of earlier cases including, in particular, Re Charter Hall Ltd [2007] FCA 1316 , Re Diversified United Investment Ltd [2008] FCA 720 , Re A J Lucas Group Ltd [2008] FCA 999 , Re Chameleon Mining NL [2009] NSWSC 660 and Re Chalice Gold Mines Ltd [2009] FCA 1236. </sentence>
<sentence from="[2010] FCA 687" id="cs1">Only one of the three sub-paras in s 1322(6) (a) needs to be satisfied in order to grant an order under s 1322(4): Re Charter Hall Ltd [2007] FCA 1316 at [7] ; Re MLC Ltd [2006] FCA 1357 ; (2006) 60 ACSR 187 ; Primelife Corp Ltd v Aevum Ltd (2005) 53 ACSR 283 at [8]; Re Westpac Banking Corporation [2004] FCA 1792 ; (2004) 53 ACSR 288 at [27] ; Jordan v Avram (1997) 141 FLR 275 at 281. The sub-paragraphs are disjunctive and not cumulative: Re Charter Hall Ltd at [7]. </sentence>
<sentence from="[2010] FCA 40" id="cs2">It is sufficient that Golden Gate meet any one of the three criteria in s 1322(6)(a) CA: Re Charter Hall Ltd [2007] FCA 1316 at [7] ; Primelife Corporation Ltd v Aevum Ltd (2005) 53 ACSR 283 at [8] and [16]; Re Commonwealth Bank of Australia [2005] FCA 1940 ; (2005) 57 ACSR 28 at [21] ; Re Westpac Banking Corporation [2004] FCA 1792 ; (2004) 53 ACSR 288 at [27] ; Jordan v Avram (1997) 141 FLR 275 at 281. </sentence>
<sentence from="[2009] NSWSC 1220" id="cs3">28 The current situation is close to that dealt with by Gyles J in Re Charter Hall [2007] FCA 1316 although there is one important difference; likewise the decision of White J in Re Chameleon Mining NL [2009] NSWSC 660 which generally followed Charter Hall is to similar effect: cf Re Chalice Gold Mines Ltd [2009] FCA 1236. </sentence>
<sentence from="[2009] FCA 1236" id="cs4">The declaratory relief sought by Chalice under s 1322(4)(a) of the Act to the effect that a Notice given under s 708A(5)(e) of the Act within the extended period be deemed to take effect as if it had been given within the period of five business days from 10 September 2009, that is, within the required five business day period, is consistent with relief granted in the matters of Charter Hall Limited, in the matter of Charter Hall Limited [2007] FCA 1316 , Diversified, in the matter of Diversified United Investment Limited ACN 006 713 177 [2008] FCA 720 and In the Matter of Chameleon Mining NL [2009] NSWSC 660. It also gives clarity for those affected shareholders (the Placees) who on-sold the relevant securities prior to the lodgement of a Notice which complies with the section and thereby to any purchaser from them. </sentence>
<sentence from="[2009] FCA 1130" id="cs5">The declaratory relief sought by RCR under s 1322(4)(a) CA to the effect that a notice given under s 708A(5)(e) CA within the extended period be deemed to take effect as if it had been given on 13 July 2009, that is, within the required five business day period, is consistent with relief granted in the matters of Charter Hall Limited, in the matter of Charter Hall Limited [2007] FCA 1316 , Diversified, in the matter of Diversified United Investment Limited ACN 006 713 177 [2008] FCA 720 and In the Matter of Chameleon Mining NL [2009] NSWSC 660. It also gives clarity for those affected shareholders (the Placees) who on-sold the relevant securities prior to the lodgement of a notice which complies with the section and thereby to any purchaser from them. </sentence>
<sentence from="[2009] NSWSC 660" id="cs6">12 It is theoretically possible that a purchaser of shares from an allottee of the shares might contend that the purchase would not have been made had the seller complied with its obligations of disclosure. Any potential for injustice can, I think, be accommodated by giving liberty to any person who may claim to have suffered substantial injustice by reason of the making of an order extending the time for compliance with s 708A(6) to apply to vary or discharge the orders within a limited period (see Re Chartered Hall Limited [2007] FCA 1316 at [11] ; Re Diversified United Investment Limited [2008] FCA 720 at [9] ; and Re AJ Lucas Group Limited [2008] FCA 999 at [7] ).</sentence>
<sentence from="[2008] FCA 720" id="cs7">7 In Charter Hall Limited, in the matter of Charter Hall Limited ("Charter Hall") [2007] FCA 1316 , Gyles J considered a similar application and described the relevant provisions and resolution of the issue in the following terms:

 3. The purpose of the provisions in question is to ensure that, where what might be called the prospectus obligations in relation to the issue of securities are sidestepped by reason of appropriate circumstances, the purchasers of such securities receive the same relevant level of disclosure as might have been achieved by other means but without the more stringent and costly requirements of a prospectus and prospectus type provisions. 4.</sentence>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 708A Sale offers that do not need disclosure</title>
<title id="l2">CORPORATIONS ACT 2001 - SECT 1012DA Product Disclosure Statement not required for sale amounting to indirect issue</title>
<title id="l3">CORPORATIONS ACT 2001 - SECT 1322 Irregularities</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>