Question:
<citphrase id="cp0.0">cited from="[2007] FCA 1216">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 1216">application for discovery under o15a r 6</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 1216">principles to be applied</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 1216">whether sufficient evidence of the necessary elements of the potential causes of action</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 1216">consideration of whether the proportionate liability provisions in pt ivaa of the wrongs act 1958 (vic) (' wrongs act ') apply to the pleaded causes of action</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCA 1216">where pt ivaa provisions are applicable according to its own terms</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCA 1216">where commonwealth legislation "otherwise provides"</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCA 1216">provisions are not picked up by s 79 of the judiciary act 1903 (cth) statutory construction</citphrase>
<citphrase id="cp0.8">cited from="[2007] FCA 1216">where contributing fault plea not available to respondents under certain provisions of the corporations act 2001 (cth) and australian securities and investments commission act 2001 (cth)</citphrase>
<citphrase id="cp1.0">cited from="[2005] FCA 801">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2005] FCA 801">preliminary discovery</citphrase>
<citphrase id="cp1.2">cited from="[2005] FCA 801">not available where sole purpose to enable decision to be made whether judgment likely to be enforceable against respondent</citphrase>
<citphrase id="cp1.3">cited from="[2005] FCA 801">not available against third party but only against the party from whom applicant may have a right to obtain relief</citphrase>
<citphrase id="cp1.4">cited from="[2005] FCA 801">meaning of 'reasonable cause to believe that the applicant has or may have the right to obtain relief'.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 59 Rules of Court</title>
<title id="l2">FEDERAL COURT RULES </title>
<title id="l3">FAIR TRADING ACT 1987 </title>
<title id="l4">FAIR TRADING ACT 1987 - SECT 42 Reference of certain questions to Products Safety Committee</title>
<title id="l5">TRAVEL AGENTS ACT 1986 </title>
<title id="l6">TRAVEL AGENTS ACT 1986 - SECT 6 Travel agents to be licensed</title>
<title id="l7">TRAVEL AGENTS ACT 1986 - SECT 11 Conditions of, and restrictions on, licence</title>
<title id="l8">TRAVEL AGENTS ACT 1986 - SECT 12 Name under which licensee may operate</title>
<title id="l9">TRAVEL AGENTS ACT 1986 </title>
<title id="l10">Travel Agents Act 1986 - SECT 6 Travel agents to be licensed</title>
<title id="l11">Travel Agents Act 1986 - SECT 11 Conditions of, and restrictions on, licence</title>
</legistitles>
</case>


Question:
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">JUDICIARY ACT 1903 </title>
<title id="l1">JUDICIARY ACT 1903 - SECT 78B Notice to Attorneys-General</title>
<title id="l2">JURISDICTION OF COURTS (CROSS-VESTING) ACT 1987 </title>
<title id="l3">JURISDICTION OF COURTS (CROSS-VESTING) ACT 1987 - SECT 5 Transfer of proceedings</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp1.0">cited from="[2006] NSWSC 415">corporations</citphrase>
<citphrase id="cp1.1">cited from="[2006] NSWSC 415">winding up</citphrase>
<citphrase id="cp1.2">cited from="[2006] NSWSC 415">termination of winding up after completion of deed of company arrangement</citphrase>
<citphrase id="cp1.3">cited from="[2006] NSWSC 415">deed and accompanying creditors' trust provide for recapitalisation of company and payment of subscription amount into a trust for the benefit of participating creditors, while releasing the company from its obligation to pay them</citphrase>
<citphrase id="cp1.4">cited from="[2006] NSWSC 415">interests of existing and future creditors, contributories and the public</citphrase>
<citphrase id="cp1.5">cited from="[2006] NSWSC 415">relevant considerations in a case involving a creditors' trust</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 435A Object of Part</title>
<title id="l2">CORPORATIONS ACT 2001 - SECT 436B Liquidator may appoint administrator</title>
<title id="l3">CORPORATIONS ACT 2001 - SECT 436E Purpose and timing of first meeting of creditors</title>
<title id="l4">CORPORATIONS ACT 2001 - SECT 439A Administrator to convene meeting and inform creditors</title>
<title id="l5">CORPORATIONS ACT 2001 - SECT 439C What creditors may decide</title>
<title id="l6">CORPORATIONS ACT 2001 - SECT 447A General power to make orders</title>
<title id="l7">CORPORATIONS ACT 2001 - SECT 482 Power to stay or terminate winding up</title>
<title id="l8">CORPORATIONS ACT 2001 - SECT 556 Priority payments</title>
<title id="l9">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2009] FMCA 636">bankruptcy</citphrase>
<citphrase id="cp0.1">cited from="[2009] FMCA 636">application to set aside bankruptcy notice</citphrase>
<citphrase id="cp0.2">cited from="[2009] FMCA 636">whether counter-claim, set-off or cross demand.</citphrase>
<citphrase id="cp1.0">cited from="[2009] FMCA 637">bankruptcy</citphrase>
<citphrase id="cp1.1">cited from="[2009] FMCA 637">application to set aside bankruptcy notice</citphrase>
<citphrase id="cp1.2">cited from="[2009] FMCA 637">whether counter-claim, set-off or cross demand</citphrase>
<citphrase id="cp1.3">cited from="[2009] FMCA 637">whether abuse of process to serve bankruptcy notice while debtor in prison.</citphrase>
<citphrase id="cp2.0">cited from="[2009] FCA 601">bankruptcy</citphrase>
<citphrase id="cp2.1">cited from="[2009] FCA 601">application for annulment</citphrase>
<citphrase id="cp2.2">cited from="[2009] FCA 601">dismissed</citphrase>
<citphrase id="cp2.3">cited from="[2009] FCA 601">appeal   practice and procedure</citphrase>
<citphrase id="cp2.4">cited from="[2009] FCA 601">appeal</citphrase>
<citphrase id="cp2.5">cited from="[2009] FCA 601">want of prosecution</citphrase>
<citphrase id="cp2.6">cited from="[2009] FCA 601">failure by appellant to prepare an appeal book</citphrase>
<citphrase id="cp2.7">cited from="[2009] FCA 601">an appeal in the nature of a "rehearing"</citphrase>
<citphrase id="cp2.8">cited from="[2009] FCA 601">further evidence on appeal</citphrase>
<citphrase id="cp3.0">cited from="[2009] FCA 60">practice and procedure</citphrase>
<citphrase id="cp3.1">cited from="[2009] FCA 60">discovery</citphrase>
<citphrase id="cp3.2">cited from="[2009] FCA 60">form of orders for further discovery of documents and computer codes</citphrase>
<citphrase id="cp3.3">cited from="[2009] FCA 60">level of discovery which should be made</citphrase>
<citphrase id="cp5.0">cited from="[2007] FCAFC 179">practice and procedure</citphrase>
<citphrase id="cp5.1">cited from="[2007] FCAFC 179">appeal</citphrase>
<citphrase id="cp5.2">cited from="[2007] FCAFC 179">competency</citphrase>
<citphrase id="cp5.3">cited from="[2007] FCAFC 179">appeal from administrative appeals tribunal</citphrase>
<citphrase id="cp5.4">cited from="[2007] FCAFC 179">dismissed under o 53 of the federal court rules (cth) and s 31a of federal court act of australia act 1976 (cth)</citphrase>
<citphrase id="cp5.5">cited from="[2007] FCAFC 179">appeal against dismissal</citphrase>
<citphrase id="cp5.6">cited from="[2007] FCAFC 179">leave requirement</citphrase>
<citphrase id="cp5.7">cited from="[2007] FCAFC 179">no application for leave</citphrase>
<citphrase id="cp5.8">cited from="[2007] FCAFC 179">no prospect of success of appeal</citphrase>
<citphrase id="cp6.0">cited from="[2007] FCA 1191">bankruptcy</citphrase>
<citphrase id="cp6.1">cited from="[2007] FCA 1191">creditor served bankruptcy notice on debtor</citphrase>
<citphrase id="cp6.2">cited from="[2007] FCA 1191">creditor was assignee of a debt from firm of solicitors</citphrase>
<citphrase id="cp6.3">cited from="[2007] FCA 1191">no evidence that assignor had security over debtor's property</citphrase>
<citphrase id="cp6.4">cited from="[2007] FCA 1191">no evidence that bankruptcy notice was issued solely for purpose of securing payment of debt</citphrase>
<citphrase id="cp6.5">cited from="[2007] FCA 1191">no evidence of a collateral purpose in a contrived arrangement to avoid assignor giving up security</citphrase>
<citphrase id="cp7.0">cited from="[2006] FCA 825">bankruptcy</citphrase>
<citphrase id="cp7.1">cited from="[2006] FCA 825">application to set aside bankruptcy notice</citphrase>
<citphrase id="cp7.2">cited from="[2006] FCA 825">whether cross claim, set off or cross demand</citphrase>
<citphrase id="cp7.3">cited from="[2006] FCA 825">whether any claims have reasonable prospects of success bankruptcy</citphrase>
<citphrase id="cp7.4">cited from="[2006] FCA 825">power to set aside bankruptcy notice</citphrase>
<citphrase id="cp7.5">cited from="[2006] FCA 825">discretion to set aside for abuse of process</citphrase>
<citphrase id="cp7.6">cited from="[2006] FCA 825">whether bankruptcy notice constitutes abuse of process</citphrase>
<citphrase id="cp7.7">cited from="[2006] FCA 825">collateral purpose</citphrase>
<citphrase id="cp7.8">cited from="[2006] FCA 825">undue pressure</citphrase>
<citphrase id="cp7.9">cited from="[2006] FCA 825">inference of collateral purpose bankruptcy act 1966 (cth)</citphrase>
<citphrase id="cp7.10">cited from="[2006] FCA 825">ss 30 41 (7) and 40 (1)(g) maxwell-smith v s  e hall, in the matter of maxwell-smith [2004] fca 840 referred to</citphrase>
<citphrase id="cp8.0">cited from="[2005] FCA 1038">bankruptcy</citphrase>
<citphrase id="cp8.1">cited from="[2005] FCA 1038">appeal</citphrase>
<citphrase id="cp8.2">cited from="[2005] FCA 1038">application to set aside bankruptcy notice refused by federal magistrate</citphrase>
<citphrase id="cp8.3">cited from="[2005] FCA 1038">whether copy of judgment attached to bankruptcy notice when served</citphrase>
<citphrase id="cp8.4">cited from="[2005] FCA 1038">whether any appeal pending</citphrase>
<citphrase id="cp8.5">cited from="[2005] FCA 1038">whether any counter-claim or set off exists. appeal</citphrase>
<citphrase id="cp8.6">cited from="[2005] FCA 1038">denial of natural justice</citphrase>
<citphrase id="cp8.7">cited from="[2005] FCA 1038">sufficiency of evidence</citphrase>
<citphrase id="cp8.8">cited from="[2005] FCA 1038">finality of costs order.</citphrase>
<citphrase id="cp9.0">cited from="[2004] FCA 918">taxation</citphrase>
<citphrase id="cp9.1">cited from="[2004] FCA 918">income tax</citphrase>
<citphrase id="cp9.2">cited from="[2004] FCA 918">recovery action</citphrase>
<citphrase id="cp9.3">cited from="[2004] FCA 918">application for summary judgment</citphrase>
<citphrase id="cp9.4">cited from="[2004] FCA 918">defence and counterclaim</citphrase>
<citphrase id="cp9.5">cited from="[2004] FCA 918">challenge to validity of amended assessments and penalty notices</citphrase>
<citphrase id="cp9.6">cited from="[2004] FCA 918">alleged formal defects</citphrase>
<citphrase id="cp9.7">cited from="[2004] FCA 918">alleged jurisdictional error</citphrase>
<citphrase id="cp9.8">cited from="[2004] FCA 918">breach of natural justice</citphrase>
<citphrase id="cp9.9">cited from="[2004] FCA 918">want of bona fides</citphrase>
<citphrase id="cp9.10">cited from="[2004] FCA 918">improper purpose</citphrase>
<citphrase id="cp9.11">cited from="[2004] FCA 918">production of certified copies of assessments and evidentiary certificate</citphrase>
<citphrase id="cp9.12">cited from="[2004] FCA 918">operation of privative clause</citphrase>
<citphrase id="cp9.13">cited from="[2004] FCA 918">scope of judicial review</citphrase>
<citphrase id="cp9.14">cited from="[2004] FCA 918">clause effective</citphrase>
<citphrase id="cp9.15">cited from="[2004] FCA 918">no arguable defence</citphrase>
<citphrase id="cp9.16">cited from="[2004] FCA 918">summary judgment awarded</citphrase>
<citphrase id="cp9.17">cited from="[2004] FCA 918">stay of proceedings or execution</citphrase>
<citphrase id="cp9.18">cited from="[2004] FCA 918">objection lodged</citphrase>
<citphrase id="cp9.19">cited from="[2004] FCA 918">failure to determine objections</citphrase>
<citphrase id="cp9.20">cited from="[2004] FCA 918">no satisfactory explanation</citphrase>
<citphrase id="cp9.21">cited from="[2004] FCA 918">stay of execution to enable deemed refusal to operate and part ivc review or appeal proceedings to be instituted constitutional law</citphrase>
<citphrase id="cp9.22">cited from="[2004] FCA 918">judiciary act 1903 (cth )</citphrase>
<citphrase id="cp9.23">cited from="[2004] FCA 918">s 78b</citphrase>
<citphrase id="cp9.24">cited from="[2004] FCA 918">whether proceedings involve a matter arising under the constitution or involving its interpretation</citphrase>
<citphrase id="cp9.25">cited from="[2004] FCA 918">unarguable plea</citphrase>
<citphrase id="cp9.26">cited from="[2004] FCA 918">no obligation to issue s 78b notices</citphrase>
<citphrase id="cp9.27">cited from="[2004] FCA 918">no obligation to stay proceedings taxation administration act 1953 (cth) s 14zy , s 14zya , s 14zz , s 255</citphrase>
<citphrase id="cp9.28">cited from="[2004] FCA 918">1 , s 255</citphrase>
<citphrase id="cp9.29">cited from="[2004] FCA 918">5 , s 255-45, s 255-50</citphrase>
<citphrase id="cp10.0">cited from="[2004] FCA 490">bankruptcy</citphrase>
<citphrase id="cp10.1">cited from="[2004] FCA 490">sequestration order made</citphrase>
<citphrase id="cp10.2">cited from="[2004] FCA 490">claim that bankruptcy notice invalid</citphrase>
<citphrase id="cp10.3">cited from="[2004] FCA 490">requirement of strict compliance with prescribed form</citphrase>
<citphrase id="cp10.4">cited from="[2004] FCA 490">omission from notice of particular words</citphrase>
<citphrase id="cp10.5">cited from="[2004] FCA 490">omission of "the creditor" under name of party claiming debt owed to creditor</citphrase>
<citphrase id="cp10.6">cited from="[2004] FCA 490">omission of drafting notes</citphrase>
<citphrase id="cp10.7">cited from="[2004] FCA 490">whether errors, and if so, whether errors of form or substance</citphrase>
<citphrase id="cp10.8">cited from="[2004] FCA 490">notice invalid</citphrase>
<citphrase id="cp16.0">cited from="[1988] HCA 34">bankruptcy</citphrase>
<citphrase id="cp16.1">cited from="[1988] HCA 34">notice</citphrase>
<citphrase id="cp16.2">cited from="[1988] HCA 34">formal defect or irregularity</citphrase>
<citphrase id="cp16.3">cited from="[1988] HCA 34">amount due on judgment debt</citphrase>
<citphrase id="cp16.4">cited from="[1988] HCA 34">understatement of interest due on debt</citphrase>
<citphrase id="cp16.5">cited from="[1988] HCA 34">notice demanding payment of amount comprising debt and understated interest</citphrase>
<citphrase id="cp16.6">cited from="[1988] HCA 34">validity</citphrase>
<citphrase id="cp16.7">cited from="[1988] HCA 34">bankruptcy act 1966 (cth), ss. 41(2)(a) , 306 (1).</citphrase>
<citphrase id="cp17.0">cited from="[1980] FCA 78">bankruptcy</citphrase>
<citphrase id="cp17.1">cited from="[1980] FCA 78">bankruptcy notice</citphrase>
<citphrase id="cp17.2">cited from="[1980] FCA 78">what constitutes an affidavit under sub-s. 41 (7)</citphrase>
<citphrase id="cp17.3">cited from="[1980] FCA 78">principles applicable to s. 41 (7) applications</citphrase>
<citphrase id="cp17.4">cited from="[1980] FCA 78">requirements to satisfy the court that the debtor has the requisite counter-claim, set-off or cross demand.  bankruptcy act 1966 (cth) ss. 30 ; 33 (1) (c), (2) (c); 40 (1) (g), 41 (7)  bankruptcy</citphrase>
<citphrase id="cp17.5">cited from="[1980] FCA 78">bankruptcy notice</citphrase>
<citphrase id="cp17.6">cited from="[1980] FCA 78">affidavit of debtor alleging counterclaim, set-off or cross demand</citphrase>
<citphrase id="cp17.7">cited from="[1980] FCA 78">sufficiency of affidavit</citphrase>
<citphrase id="cp17.8">cited from="[1980] FCA 78">requirements of affidavit</citphrase>
<citphrase id="cp17.9">cited from="[1980] FCA 78">statutory extension of time for complying with bankruptcy notice</citphrase>
<citphrase id="cp17.10">cited from="[1980] FCA 78">bankruptcy act 1966 (cth), ss. 30 , 33 (1) (c), (2) (c), 40 (1) (g), 41 (7). on 14th september, 1979, the commercial banking company of sydney ltd. ("the respondent") signed judgment against the applicant in the district court of new south wales in the sum of $8,524.14. on 29th february, 1980, the deputy registrar issued a bankruptcy notice directed to the applicant. within the time limited the applicant filed an affidavit purporting to show that he had a counterclaim, set-off or cross demand within the meaning of s. 40 (1) (g) of the bankruptcy act 1966 ("the act"). by operation of the statute the filing of a sufficient affidavit had the effect of extending the time within which the debtor had to comply with the bankruptcy notice (s. 41 (7)). as a preliminary issue the court was asked to determine whether the affidavit filed was an affidavit of the kind referred to in s. 41 (7) of the act.  held: (1) the precise requirements of any affidavit purporting to come within the provisions of s. 40 (1) (g) and s. 41 (7) are not capable of definitive formulation and must depend upon the particular facts and circumstances of the case.  re a debtor; ex parte the debtor v. tossoun, (1963) 1 wlr 51 , referred to with approval.  (2) the affidavit must show that the debtor has a prima facie case by way of counterclaim, set-off or cross demand which equals or exceeds the cross demand and which case could not have been set up in the action or proceeding in which the judgment or order was obtained.  ebert v. union trustee company of australia ltd. [1960] hca 50 ; (1960), 104 clr 346 , followed.  (3) when, as here, the affidavit did not reveal why the alleged counterclaim, set-off or cross demand could not have been set up in the original court proceedings, such affidavit did not comply with the act, with the result that there had been no deemed extension of time to comply with the requirements of the bankruptcy notice.</citphrase>
<citphrase id="cp18.0">cited from="[1980] FCA 61">bankruptcy</citphrase>
<citphrase id="cp18.1">cited from="[1980] FCA 61">bankruptcy notice</citphrase>
<citphrase id="cp18.2">cited from="[1980] FCA 61">application for extension of time for compliance with requirements of bankruptcy notice</citphrase>
<citphrase id="cp18.3">cited from="[1980] FCA 61">applicant having filed with registrar an application to set aside notice</citphrase>
<citphrase id="cp18.4">cited from="[1980] FCA 61">act expressly conferring power to extend time; but not to set aside the notice itself</citphrase>
<citphrase id="cp18.5">cited from="[1980] FCA 61">ubi aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potest</citphrase>
<citphrase id="cp18.6">cited from="[1980] FCA 61">inherent jurisdiction to set aside bankruptcy notice</citphrase>
<citphrase id="cp18.7">cited from="[1980] FCA 61">relation between paras. 41 (6a) (a) and (b)</citphrase>
<citphrase id="cp18.8">cited from="[1980] FCA 61">exercise of discretion to grant extension of time.  bankruptcy act 1966 (cth.) ss. 30 , 33 , 41 (6a), (6b) and (6c)  bankruptcy amendment act 1980 (cth.)  bankruptcy</citphrase>
<citphrase id="cp18.9">cited from="[1980] FCA 61">bankruptcy notice</citphrase>
<citphrase id="cp18.10">cited from="[1980] FCA 61">application for extension of time for compliance with requirement of bankruptcy notice</citphrase>
<citphrase id="cp18.11">cited from="[1980] FCA 61">applicant having filed with registrar an application to set aside notice</citphrase>
<citphrase id="cp18.12">cited from="[1980] FCA 61">act expressly conferring power to extend time but not to set aside notice itself</citphrase>
<citphrase id="cp18.13">cited from="[1980] FCA 61">inherent jurisdiction to set aside</citphrase>
<citphrase id="cp18.14">cited from="[1980] FCA 61">relation between pars. (a) and (b) of bankruptcy act s. 41 (6a)</citphrase>
<citphrase id="cp18.15">cited from="[1980] FCA 61">exercise of discretion to grant extension of time</citphrase>
<citphrase id="cp18.16">cited from="[1980] FCA 61">bankruptcy act 1966 (cth), ss. 30 , 33 , 41 (6a), (6b), (6c)</citphrase>
<citphrase id="cp18.17">cited from="[1980] FCA 61">bankruptcy amendment act 1980 (cth), ss. 20 , 24 . section 41 (6a) of the bankruptcy act , as amended, provides that: "where, before the expiration of the time fixed by the court or the registrar for compliance with the requirements of a bankruptcy notice</citphrase>
<citphrase id="cp18.18">cited from="[1980] FCA 61">(a) proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or  (b) an application to set aside the bankruptcy notice has been filed with the registrar; the court may, subject to sub-section (6c), extend the time for compliance with the bankruptcy notice."</citphrase>
<citphrase id="cp20.0">citing from="[2011] FMCA 232">bankruptcy</citphrase>
<citphrase id="cp20.1">citing from="[2011] FMCA 232">sequestration order on petition brought by solicitor without authority from petitioning creditor</citphrase>
<citphrase id="cp20.2">citing from="[2011] FMCA 232">application to set aside or annul</citphrase>
<citphrase id="cp20.3">citing from="[2011] FMCA 232">six months' delay</citphrase>
<citphrase id="cp20.4">citing from="[2011] FMCA 232">consideration of costs and expenses of trustee</citphrase>
<citphrase id="cp20.5">citing from="[2011] FMCA 232">discretionary considerations</citphrase>
<citphrase id="cp20.6">citing from="[2011] FMCA 232">order annulled</citphrase>
<citphrase id="cp20.7">citing from="[2011] FMCA 232">liability of unauthorised solicitor for costs</citphrase>
<citphrase id="cp20.8">citing from="[2011] FMCA 232">whether indemnity costs appropriate.</citphrase>
<citphrase id="cp21.0">citing from="[2010] FCA 432">practice and procedure</citphrase>
<citphrase id="cp21.1">citing from="[2010] FCA 432">failure to comply with court order to pay security for costs</citphrase>
<citphrase id="cp21.2">citing from="[2010] FCA 432">want of prosecution</citphrase>
<citphrase id="cp21.3">citing from="[2010] FCA 432">appeals are a re-ventilation of matters already argued</citphrase>
<citphrase id="cp21.4">citing from="[2010] FCA 432">appeals dismissed</citphrase>
<citphrase id="cp22.0">citing from="[2010] FCA 288">practice and procedure</citphrase>
<citphrase id="cp22.1">citing from="[2010] FCA 288">security for costs</citphrase>
<citphrase id="cp22.2">citing from="[2010] FCA 288">whether application for security is oppressive</citphrase>
<citphrase id="cp22.3">citing from="[2010] FCA 288">question of balance</citphrase>
<citphrase id="cp22.4">citing from="[2010] FCA 288">where grounds of appeal are a re-ventilation of matters already decided</citphrase>
<citphrase id="cp23.0">citing from="[2009] FMCA 1160">bankruptcy</citphrase>
<citphrase id="cp23.1">citing from="[2009] FMCA 1160">creditors petition</citphrase>
<citphrase id="cp23.2">citing from="[2009] FMCA 1160">consideration of grounds of opposition.</citphrase>
<citphrase id="cp24.0">citing from="[2009] FMCA 1107">bankruptcy</citphrase>
<citphrase id="cp24.1">citing from="[2009] FMCA 1107">creditors petition</citphrase>
<citphrase id="cp24.2">citing from="[2009] FMCA 1107">consideration of grounds of opposition.</citphrase>
<citphrase id="cp25.0">citing from="[2009] FMCA 1168">bankruptcy</citphrase>
<citphrase id="cp25.1">citing from="[2009] FMCA 1168">application to set aside bankruptcy notice</citphrase>
<citphrase id="cp25.2">citing from="[2009] FMCA 1168">whether bankruptcy notice an abuse of process</citphrase>
<citphrase id="cp25.3">citing from="[2009] FMCA 1168">consent judgment against guarantor</citphrase>
<citphrase id="cp25.4">citing from="[2009] FMCA 1168">creditor serving bankruptcy notice before realising security</citphrase>
<citphrase id="cp25.5">citing from="[2009] FMCA 1168">no implied stay arising from payments deed between parties</citphrase>
<citphrase id="cp25.6">citing from="[2009] FMCA 1168">no evidence of improper motive of creditor</citphrase>
<citphrase id="cp25.7">citing from="[2009] FMCA 1168">application dismissed</citphrase>
<citphrase id="cp25.8">citing from="[2009] FMCA 1168">indemnity costs refused.</citphrase>
<citphrase id="cp26.0">citing from="[2009] FMCA 1079">bankruptcy</citphrase>
<citphrase id="cp26.1">citing from="[2009] FMCA 1079">bankruptcy notice claiming debt owed to strata owners corporation</citphrase>
<citphrase id="cp26.2">citing from="[2009] FMCA 1079">application to set aside</citphrase>
<citphrase id="cp26.3">citing from="[2009] FMCA 1079">authorisation of solicitor to request issue of bankruptcy notice</citphrase>
<citphrase id="cp26.4">citing from="[2009] FMCA 1079">validity of resolution of executive committee</citphrase>
<citphrase id="cp26.5">citing from="[2009] FMCA 1079">whether defects in notice of meeting</citphrase>
<citphrase id="cp26.6">citing from="[2009] FMCA 1079">disclosure to unit owners of solicitor's fees agreement and disclosure</citphrase>
<citphrase id="cp26.7">citing from="[2009] FMCA 1079">effect of non-compliance</citphrase>
<citphrase id="cp26.8">citing from="[2009] FMCA 1079">validity of bankruptcy notice upheld</citphrase>
<citphrase id="cp26.9">citing from="[2009] FMCA 1079">application dismissed.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 232" id="cs0">There is a much shorter and clearer ground establishing my jurisdiction to set aside the sequestration order or to annul it under s.153B of the Bankruptcy Act . My finding that Mr Gabbedy lacked authority to apply for a bankruptcy notice on behalf of the company previously named TaxView Pty Ltd, and that he also lacked that company's authority to commence and proceed with the creditor's petition, have the undoubted consequence that the bankruptcy notice and the proceedings on the petition were invalid (see Australian Workers' Union v Bowen (1946) 72 CLR 575 at 583. As to the form of a solicitor's signature of a bankruptcy notice, see Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 ; (2000) 98 FCR 447 at [2] - [11], de Robillard v Carver [2007] FCAFC 73 ; (2007) 159 FCR 38 at [100] - [116], and Yang v Mead [2009] FCA 1202 at [16] - [17]). Had these defects been revealed to the Court in July 2010, the Registrar would have been bound, by law, to dismiss the petition. I would similarly be bound to do this now if I exercised powers of review under s.104 of the Federal Magistrates Act , or if I reheard the matter after setting it aside under r.16.05.</sentence>
<sentence from="[2010] FCA 432" id="cs1">The reasons for the refusal of special leave were given by Heydon and Bell JJ who dealt with each of the applications. Their Honours said in each matter that there was no reason to doubt the correctness of the decision of Flick J. I referred in my earlier judgment to the decision of Flick J and his Honour's reasons for judgment in the matter of Yang v Mead [2009] FCA 1202. </sentence>
<sentence from="[2010] FCA 288" id="cs2">Ms Mead filed a notice of appeal against the orders of Barnes FM, but on 26 October 2009, Flick J dismissed the appellant's appeal and delivered reasons for his judgment, see Yang v Mead [2009] FCA 1202. Ms Mead has filed an application for special leave to appeal to the High Court against the orders of Flick J. The High Court has yet to determine the special leave application, but it is anticipated that the application will be determined within a fairly short period of time. </sentence>
<sentence from="[2009] FMCA 1160" id="cs3">Ms Yang challenged the bankruptcy notice in earlier proceedings in this Court [1] . That application was dismissed. Ms Yang appealed unsuccessfully against that decision to the Federal Court of Australia [2] . </sentence>
<sentence from="[2009] FMCA 1107" id="cs4">Ms Mead challenged the bankruptcy notice issued to her in earlier proceedings in this Court [2] . The application was dismissed with costs. Ms Mead unsuccessfully appealed against that judgment to the Federal Court of Australia [3] . </sentence>
<sentence from="[2009] FMCA 1168" id="cs5">Recent judgments seem to assume that the issuing of a bankruptcy notice can be sufficiently regarded as connected to the judicial process because the notice is subject to setting aside by the court, or because non-compliance will give rise to a ground for bringing a bankruptcy petition, notwithstanding that the issuing of a bankruptcy notice is an administrative and non-judicial activity. It is unnecessary for me in the present case to consider whether this assumption should be questioned, or should be related to concepts of abuse of process in administrative law. Whatever the foundations for the ground, it appears to me that recent authorities, including the two I have cited above and other cases including Watts v Adelaide Bank Limited [2009] FCA 420 , and Cavoli v Etl [2007] FCA 1191 , and Yang v Mead [2009] FCA 1202 , show that the debtor needs to be able to establish an improper motive of the creditor from evidence which demonstrates that there is no legitimate justification for the serving of a bankruptcy notice in the particular circumstances. Compelling circumstantial evidence of motive is usually required. For example, where a creditor has knowledge that a debtor is clearly solvent, is able to pay the judgment debt from his liquid resources, has made reasonable offers for payment or security, and there is no apparent commercial explanation for the serving of a bankruptcy notice, the court might in the particular context infer an improper purpose for serving a bankruptcy notice.</sentence>
<sentence from="[2009] FMCA 1079" id="cs6">Mr McClymont did not submit that, if there were no defects in the procedures leading to the instructing of the solicitor, it would not have been permissible under the Bankruptcy Act for the owners corporation to authorise a solicitor to apply for the issue of the bankruptcy notice. Nor does he take any point in relation to the form in which the solicitor signed the application for the bankruptcy notice, in which he confirmed "that he or she is the creditor's authorised agent" . It is therefore unnecessary for me to describe this part of the bankruptcy notice, although I note that it appears to be in a form which has previously been upheld (see Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 ; (2000) 98 FCR 447 at [2] - [11], de Robillard v Carver [2007] FCAFC 73 ; (2007) 159 FCR 38 at [100] - [116] , and Yang v Mead [2009] FCA 1202 at [16] - [17]). </sentence>
</citances>
<legistitles>
<title id="l0">BANKRUPTCY ACT 1966 </title>
<title id="l1">BANKRUPTCY ACT 1966 - SECT 40 Acts of bankruptcy</title>
<title id="l2">BANKRUPTCY ACT 1966 - SECT 41 Bankruptcy notices</title>
<title id="l3">BANKRUPTCY ACT 1966 - SECT 306 Formal defect not to invalidate proceedings</title>
<title id="l4">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l5">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l6">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 25 Exercise of appellate jurisdiction</title>
<title id="l7">JUDICIARY ACT 1903 </title>
<title id="l8">JUDICIARY ACT 1903 - SECT 78B Notice to Attorneys-General</title>
<title id="l9">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCA 1329">corporations</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 1329">second extension of convening period for second meeting of creditors of companies in administration</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 1329">parliamentary intention of maintaining tight time limits</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 1329">purpose of company administration</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1028">corporations</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1028">companies in administration</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1028">extension of "decision period" for enforcement of charges</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 935">corporations</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 935">extension of convening period for second meeting of creditors of companies in administration</citphrase>
<citphrase id="cp3.0">citing from="[2010] FCA 468">corporations</citphrase>
<citphrase id="cp3.1">citing from="[2010] FCA 468">voluntary administration</citphrase>
<citphrase id="cp3.2">citing from="[2010] FCA 468">second meeting of creditors</citphrase>
<citphrase id="cp3.3">citing from="[2010] FCA 468">extension of convening period</citphrase>
<citphrase id="cp3.4">citing from="[2010] FCA 468">manner of giving notice of meeting</citphrase>
<citphrase id="cp3.5">citing from="[2010] FCA 468">(cth) corporations act ss 439a, 447a, 447d</citphrase>
<citphrase id="cp4.0">citing from="[2010] FCA 30">corporations</citphrase>
<citphrase id="cp4.1">citing from="[2010] FCA 30">liquidation</citphrase>
<citphrase id="cp4.2">citing from="[2010] FCA 30">extension of time for convening second creditors' meeting pursuant to s 439a(6) of the corporations act 2001 (cth)</citphrase>
<citphrase id="cp4.3">citing from="[2010] FCA 30">reasons justifying extension</citphrase>
<citphrase id="cp4.4">citing from="[2010] FCA 30">complex liquidation</citphrase>
<citphrase id="cp4.5">citing from="[2010] FCA 30">balancing test</citphrase>
<citphrase id="cp4.6">citing from="[2010] FCA 30">position of creditors</citphrase>
<citphrase id="cp4.7">citing from="[2010] FCA 30">extension granted</citphrase>
<citphrase id="cp6.0">citing from="[2008] FCA 1933">corporations</citphrase>
<citphrase id="cp6.1">citing from="[2008] FCA 1933">extension of convening period for second meeting of creditors of company in administration</citphrase>
<citphrase id="cp7.0">citing from="[2007] FCA 1329">corporations</citphrase>
<citphrase id="cp7.1">citing from="[2007] FCA 1329">second extension of convening period for second meeting of creditors of companies in administration</citphrase>
<citphrase id="cp7.2">citing from="[2007] FCA 1329">parliamentary intention of maintaining tight time limits</citphrase>
<citphrase id="cp7.3">citing from="[2007] FCA 1329">purpose of company administration</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 468" id="cs0">In Re Riviera Group Pty Ltd (admins apptd) (recs and mgrs apptd) [2009] NSWSC 585 ; (2009) 72 ACSR 352 , Austin J at para 11 surveyed the authorities and summarised, at para 13, the reasons given for extension in cases subsequent to Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 as follows:

 [13] The reasons given for an extension in subsequent cases can be grouped into the following broad categories:

 the size and scope of the business: Lombe, Re Babcock  Brown Ltd (admins apptd) [2009] FCA 349 ; Worrell; Re Storm Financial Ltd (recs and mgrs apptd) [2009] FCA 70 ; ABC Learning Centres Ltd, Re of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947 ; substantial offshore activities: Lehman Bros Australia Ltd [2008] NSWSC 1132 ; large number of employees with complex entitlements: Re S  D International Pty Ltd (in liq); Malhotra v Tiwari [2005] VSC 496 ; Re Ansett Australia (All admin apptd) and Korda (As admins) [2002] FCA 90 ; complex corporate group structure and intercompany loans: Lombe, Re Babcock  Brown Ltd (admins apptd) [2009] FCA 349 ; Re Octaviar Ltd (admins apptd) (recs and mgrs apptd) [2008] QSC 272 ; Re of LED Builders Pty Ltd (admins apptd); LED Builders Pty Ltd (admins apptd) [2008] NSWSC 633 ; Hall, Re of Australian Capital Reserve Ltd (admins apptd) [2007] FCA 1328 ; complex transactions entered into by the company (eg securities lending or derivatives transactions): In Re Lift Capital Partners Ltd (admins apptd) [2008] NSWSC 446 ; complex prospects of recovery proceedings: Worrel, Re Storm Financial Ltd (admins apptd) [2009] FCA 70 ; Deputy Cmr of Taxation v Wellnora Pty Ltd [2007] FCA 1324 ; lack of access to corporate financial records: Sims, Re Destra Corporation Ltd [2008] FCA 2002 ; Fincorp Group Holdings Pty Ltd [2007] NSWSC 363 ; the time needed to execute an orderly process of disposal of assets: Carter, Re SFM Australasia Pty Ltd (admins apptd) (No 2) [2009] FCA 419 ; ABC Learning Centres Ltd, Re ABC Learning Centres Ltd; application by Walker (No 7) [2009] FCA 454 ; the time needed for thorough assessment of a proposal for a deed of company arrangement: Silvia, Re Austcorp Group Ltd (admins apptd) [2009] FCA 636 ; where the extension will allow sale of the business as a going concern: Lombe Re Australian Discount Retail Pty Ltd [2009] NSWSC 110 ; Stewart, Re Kleins Franchising Pty Ltd (admins apptd) [2008] FCA 721 ; Uni-Aire Security Pty Ltd (admins apptd, Re of Uni-Aire Security Pty Ltd (admins apptd) [2006] FCA 1423 ; more generally, that additional time is likely to enhance the return for unsecured creditors: Deputy Cmr of Taxation v Scottsdale Homes No 3 Pty Ltd (No 2) [2009] FCA 190 ; Fitzgerald, Re of Primebroker Securities Ltd (admin apptd) (recs and mgrs apptd) [2008] FCA 1247 ; Ex parte Vouris; Re Marrickville Bowling and Recreation Club Ltd (under Administration) [2008] DCA 622. </sentence>
<sentence from="[2010] FCA 30" id="cs1">A variety of other reasons which would also justify an extension are categorised by Austin J in Re; Riviera Group Pty Ltd [2009] NSWSC 585 ; (2009) 72 ACSR 352 at 355, [13] where his Honour said:

 [13] The reasons given for an extension in subsequent cases can be grouped into the following broad categories:

 the size and scope of the business: Re Lombe; Babcock  Brown Ltd (admins apptd) [2009] FCA 349 (Re Lombe); Re Worrell; Storm Financial Ltd (recs and mgrs apptd) (2009) 69 ACSR 584 ; [2009] FCA 70 (Re Worrell); Re ABC Learning Centres Ltd; Application by Walker (No 5) [2008] FCA 1947 ; substantial offshore activities: Re Lehman Bros Australia Ltd [2008] NSWSC 1132 ; large number of employees with complex entitlements: Re S  D International Pty Ltd (in liq); Malhotra v Tiwari [2005] VSC 496 ; Re Ansett Australia Ltd and Korda; sub nom Ansett Australia Ltd (No 3) (FCR) (2002) 115 FCR 409 ; 40 ACSR 433 ; [2002] FCA 90 ; complex corporate group structure and intercompany loans: Re Lombe; Re Octaviar Ltd (admins apptd) (recs and mgrs apptd) (ACN 107 863 436) [2008] QSC 272 ; Re LED Builders Pty Ltd (admin apptd) [2008] NSWSC 633 ; Hall; Re Australian Capital Reserve Ltd (admins apptd) [2007] FCA 1328 ; complex transactions entered into by the company (for example securities lending or derivatives transactions): In Re Lift Capital Partners Pty Ltd (admin apptd) [2008] NSWSC 446 ( Re Lift Capital ); complex prospects of recovery proceedings: Re Worrell; Coal Developments (German Creek) Pty Ltd v Cmr of Taxation (2007) 241 ALR 667 ; [2007] FCA 1324 ; lack of access to corporate financial records: Re Sims; Destra Corp Ltd [2008] FCA 2002 ; Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192 ; [2007] NSWSC 363 ; the time needed to execute an orderly process of disposal of assets: Re Carter, SFM Australasia Pty Ltd (admin apptd) (ACN 105 317 333) (No 2) [2009] FCA 419 ; Re ABC Learning Centres Ltd; Application by Walker (No 7) (2009) 71 ACSR 560 ; [2009] FCA 454 ; the time needed for thorough assessment of a proposal for a deed of company arrangement: Silvia, Re Austcorp Group Ltd (admin apptd) [2009] FCA 636 ; where the extension will allow sale of the business as a going concern: Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110 ; Stewart, Re Kleins Franchising Pty Ltd (admin apptd) [2008] FCA 721 ; Re Uni-Aire Security Pty Ltd (admin apptd) [2006] FCA 1423 ; more generally, that additional time is likely to enhance the return for unsecured creditors: Deputy Commissioner of Taxation v Scottsdale Homes No Pty Ltd (No 2) [2009] FCA 190 ; Re Fitzgerald; Primebroker Securities Ltd (admin apptd) (recs and mgrs apptd) [2008] FCA 1247 ; Re Vouris; Marrickville Bowling and Recreation Club Ltd [2008] FCA 622. </sentence>
<sentence from="[2009] NSWSC 585" id="cs2">13 The reasons given for an extension in subsequent cases can be grouped into the following broad categories:
· the size and scope of the business: Lombe, Re Babcock  Brown Ltd (Administrators Appointed) [2009] FCA 349 ; Worrell; Re Storm Financial Ltd (Receivers and Managers Appointed) [2009] FCA 70 ; ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947 ;
· substantial offshore activities: Lehman Bros Australia Ltd [2008] NSWSC 1132 ;
· large number of employees with complex entitlements: Re S  D International Pty Ltd (in liq); Malhotra v Tiwari [2005] VSC 496 ; Re Ansett Australia  Ors (All Admin Appointed) and Korda and Anor (As Administrators) [2002] FCA 90 ;
· complex corporate group structure and intercompany loans: Lombe, Re Babcock  Brown Ltd (Administrators Appointed) [2009] FCA 349 ; Re Octaviar Limited (Administrators Appointed) (Receivers and Managers Appointed (ACN 107 863 436) [2008] QSC 272 ; In the matter of LED Builders Pty Ltd (Administrators Appointed); LED Builders Pty Ltd (Administrators Appointed) and Ors [2008] NSWSC 633 ; Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 ;
· complex transactions entered into by the company (e.g. securities lending or derivatives transactions): In the matter of Lift Capital Partners Ltd (Administrators Appointed) [2008] NSWSC 446 ;
· complex prospects of recovery proceedings: Worrel, Re Storm Financial Ltd (Receivers and Managers Appointed) [2009] FCA 70 ; Deputy Commissioner of Taxation v Wellnora Pty Limited [2007] FCA 1324 ;
· lack of access to corporate financial records: Sims, in the matter of Destra Corporation Ltd [2008] FCA 2002 ; Fincorp Group Holdings Pty Ltd  Ors [2007] NSWSC 363 ;
· the time needed to execute an orderly process of disposal of assets: Carter, in the matter of SFM Australasia Pty Ltd (Administrators Appointed) ACN 105 317 333 (No 2) [2009] FCA 419 ; ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 7) [2009] FCA 454 ;
· the time needed for thorough assessment of a proposal for a deed of company arrangement: Silvia, in the matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636 ;
· where the extension will allow sale of the business as a going concern: Lombe Re Australian Discount Retail Pty Ltd [2009] NSWSC 110 ; Stewart, in the matter of Kleins Franchising Pty Ltd (Administrators Appointed) (ACN 007 348 236) [2008] FCA 721 ; Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619, in the matter of Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619 [2006] FCA 1423 ;
· more generally, that additional time is likely to enhance the return for unsecured creditors: Deputy Commissioner of Taxation v Scottsdale Homes No 3 Pty Ltd (No 2) [2009] FCA 190 ; Fitzgerald, in the matter of Primebroker Securities Limited (Administrator Appointed) (Receivers and Managers Appointed) [2008] FCA 1247 ; Ex parte Vouris; in the matter of Marrickville Bowling and Recreation Club Ltd (under Administration) [2008] DCA 622.</sentence>
<sentence from="[2008] FCA 1933" id="cs3">24 In Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935 , Gyles J took a slightly different approach from that which was adopted in the cases referred to above. His Honour made orders extending the convening period for up to 60 days but he reserved consideration of any application to further extend the period if a case were made out for such a further extension. His Honour said he would then exercise the power provided for by s 447A. (See also Hall, in the matter of Australian Capital Reserve Ltd (Administrators Appointed) [2007] FCA 1328 at [1] ). The effect of the approach taken by Gyles J, if adopted in the present case, would be for an extension of time to be dealt with in stages and that is a matter I have considered carefully in considering the application that was made to me this morning. </sentence>
<sentence from="[2007] FCA 1329" id="cs4">1 On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.</sentence>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 9 Dictionary</title>
<title id="l2">CORPORATIONS ACT 2001 - SECT 283AA Requirement for trust deed and trustee</title>
<title id="l3">CORPORATIONS ACT 2001 - SECT 283AB Trust deed</title>
<title id="l4">CORPORATIONS ACT 2001 - SECT 283AC Who can be a trustee</title>
<title id="l5">CORPORATIONS ACT 2001 - SECT 283BB General duties</title>
<title id="l6">CORPORATIONS ACT 2001 - SECT 283BC Duty to notify ASIC of information related to trustee</title>
<title id="l7">CORPORATIONS ACT 2001 - SECT 283BD Duty to replace trustee</title>
<title id="l8">CORPORATIONS ACT 2001 - SECT 283BE Duty to inform trustee about charges</title>
<title id="l9">CORPORATIONS ACT 2001 - SECT 283BF Duty to give trustee and ASIC quarterly reports</title>
<title id="l10">CORPORATIONS ACT 2001 - SECT 283CC Duty to inform trustee about charges</title>
<title id="l11">CORPORATIONS ACT 2001 - SECT 283CE Offences for failure to comply with statutory duties</title>
<title id="l12">CORPORATIONS ACT 2001 - SECT 283DA Trustee's duties</title>
<title id="l13">CORPORATIONS ACT 2001 - SECT 283EA Borrower's duty to call meeting</title>
<title id="l14">CORPORATIONS ACT 2001 - SECT 283EB Trustee's power to call meeting</title>
<title id="l15">CORPORATIONS ACT 2001 - SECT 283EC Court may order meeting</title>
<title id="l16">CORPORATIONS ACT 2001 - SECT 283HA General Court power to give directions and determine questions</title>
<title id="l17">CORPORATIONS ACT 2001 - SECT 283HB Specific Court powers</title>
<title id="l18">CORPORATIONS ACT 2001 - SECT 439A Administrator to convene meeting and inform creditors</title>
<title id="l19">CORPORATIONS ACT 2001 - SECT 441A Where chargee acts before or during decision period</title>
<title id="l20">CORPORATIONS ACT 2001 - SECT 447A General power to make orders</title>
<title id="l21">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCA 1387">bankruptcy</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCA 1387">applications to re-open case after reasons for decision given and prior to entry of orders</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCA 1387">whether re-opening in the interests of justice</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCA 1387">importance of finality of litigation</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCA 1387">mere discontent with reasons insufficient to justify re-opening</citphrase>
<citphrase id="cp0.5">cited from="[2008] FCA 1387">not clear that court proceeded on a misapprehension as to the facts or law</citphrase>
<citphrase id="cp1.0">cited from="[2008] FCA 478">bankruptcy</citphrase>
<citphrase id="cp1.1">cited from="[2008] FCA 478">former trustee's claims for remuneration and costs</citphrase>
<citphrase id="cp1.2">cited from="[2008] FCA 478">where creditors' resolutions alleged to be ineffective</citphrase>
<citphrase id="cp1.3">cited from="[2008] FCA 478">whether minor irregularities invalidated trustee's claims</citphrase>
<citphrase id="cp1.4">cited from="[2008] FCA 478">ss 64u, 162 bankruptcy act 1966 (cth)</citphrase>
<citphrase id="cp1.5">cited from="[2008] FCA 478">relationship between trustee and those who assisted him</citphrase>
<citphrase id="cp1.6">cited from="[2008] FCA 478">prospective approval of remuneration</citphrase>
<citphrase id="cp1.7">cited from="[2008] FCA 478">calculation of legal costs owing bankruptcy</citphrase>
<citphrase id="cp1.8">cited from="[2008] FCA 478">property charged by former bankrupt to secure payment of amount to which former trustee 'legally entitled'</citphrase>
<citphrase id="cp1.9">cited from="[2008] FCA 478">payment to be made within 28 days of determination of the quantum of 'the same'</citphrase>
<citphrase id="cp1.10">cited from="[2008] FCA 478">cross-claim for orders-in-aid</citphrase>
<citphrase id="cp1.11">cited from="[2008] FCA 478">whether trustee entitled to relief at date of filing of cross-claim</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 1589">bankruptcy</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 1589">trustee</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 1589">remuneration and costs to which trustee lawfully entitled</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 1589">work undertaken post-annulment</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 1589">taxation of costs</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 1589">impact of consent orders</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 1589">enforcement of charge over property</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 1589">court ordered sale of property</citphrase>
<citphrase id="cp2.8">cited from="[2007] FCA 1589">held: trustee to be awarded amount for remuneration, costs, charges and expenses to which legally entitled</citphrase>
<citphrase id="cp3.0">cited from="[2006] FCAFC 140">bankruptcy</citphrase>
<citphrase id="cp3.1">cited from="[2006] FCAFC 140">entitlements of trustee</citphrase>
<citphrase id="cp3.2">cited from="[2006] FCAFC 140">certificates of taxation relating to remuneration, costs, charges and expenses claimed by former trustee set aside</citphrase>
<citphrase id="cp3.3">cited from="[2006] FCAFC 140">where work undertaken after bankruptcy annulled</citphrase>
<citphrase id="cp3.4">cited from="[2006] FCAFC 140">where remuneration and costs claimed in relation to litigation</citphrase>
<citphrase id="cp3.5">cited from="[2006] FCAFC 140">where primary judge found litigation undertaken for the former trustee's own benefit</citphrase>
<citphrase id="cp3.6">cited from="[2006] FCAFC 140">whether litigation undertaken for former trustee's own benefit was not for the purpose of the administration of the estate</citphrase>
<citphrase id="cp4.0">cited from="[1996] HCA 8">statutes</citphrase>
<citphrase id="cp4.1">cited from="[1996] HCA 8">delegated legislation</citphrase>
<citphrase id="cp4.2">cited from="[1996] HCA 8">family law rules</citphrase>
<citphrase id="cp4.3">cited from="[1996] HCA 8">o 24 r 1(8) and (9)</citphrase>
<citphrase id="cp4.4">cited from="[1996] HCA 8">inadmissibility of evidence as to anything said in conference</citphrase>
<citphrase id="cp4.5">cited from="[1996] HCA 8">rule-making power vested in judges of family court</citphrase>
<citphrase id="cp4.6">cited from="[1996] HCA 8">scope of rule-making power</citphrase>
<citphrase id="cp4.7">cited from="[1996] HCA 8">"practice and procedure" of family court</citphrase>
<citphrase id="cp4.8">cited from="[1996] HCA 8">consistency with family law act 1975 (cth)</citphrase>
<citphrase id="cp4.9">cited from="[1996] HCA 8">matters arising under family law act 1975 (cth).   family law</citphrase>
<citphrase id="cp4.10">cited from="[1996] HCA 8">conference</citphrase>
<citphrase id="cp4.11">cited from="[1996] HCA 8">inadmissibility of evidence</citphrase>
<citphrase id="cp4.12">cited from="[1996] HCA 8">inconsistency with act.   constitutional law</citphrase>
<citphrase id="cp4.13">cited from="[1996] HCA 8">judicial power of commonwealth</citphrase>
<citphrase id="cp4.14">cited from="[1996] HCA 8">family law rules</citphrase>
<citphrase id="cp4.15">cited from="[1996] HCA 8">o 36a r 5(2)</citphrase>
<citphrase id="cp4.16">cited from="[1996] HCA 8">time limit of seven days on application for review of exercise by registrar of delegated powers of the court</citphrase>
<citphrase id="cp4.17">cited from="[1996] HCA 8">whether effective supervision and control by family court over exercise of delegated powers</citphrase>
<citphrase id="cp4.18">cited from="[1996] HCA 8">validity of time limit for review.   statutes</citphrase>
<citphrase id="cp4.19">cited from="[1996] HCA 8">delegated legislation</citphrase>
<citphrase id="cp4.20">cited from="[1996] HCA 8">family law rules</citphrase>
<citphrase id="cp4.21">cited from="[1996] HCA 8">severance</citphrase>
<citphrase id="cp4.22">cited from="[1996] HCA 8">substantial purpose and effect of impugned provision</citphrase>
<citphrase id="cp4.23">cited from="[1996] HCA 8">acts interpretation act 1901 (cth).</citphrase>
<citphrase id="cp5.0">cited from="[1991] HCA 9">constitutional law (cth)</citphrase>
<citphrase id="cp5.1">cited from="[1991] HCA 9">judicial power of the commonwealth</citphrase>
<citphrase id="cp5.2">cited from="[1991] HCA 9">family court</citphrase>
<citphrase id="cp5.3">cited from="[1991] HCA 9">delegation of powers to registrar</citphrase>
<citphrase id="cp5.4">cited from="[1991] HCA 9">decisions of registrar reviewable by court</citphrase>
<citphrase id="cp5.5">cited from="[1991] HCA 9">hearing de novo</citphrase>
<citphrase id="cp5.6">cited from="[1991] HCA 9">validity of delegation</citphrase>
<citphrase id="cp5.7">cited from="[1991] HCA 9">the constitution (62 and 63 vict. c. 12) ss. 71 , 77 , 79</citphrase>
<citphrase id="cp5.8">cited from="[1991] HCA 9">family law act 1975 (cth), ss. 37a , 79 , 79a</citphrase>
<citphrase id="cp5.9">cited from="[1991] HCA 9">family law rules, o. 36a.  family law (cth)</citphrase>
<citphrase id="cp5.10">cited from="[1991] HCA 9">family court</citphrase>
<citphrase id="cp5.11">cited from="[1991] HCA 9">registrar</citphrase>
<citphrase id="cp5.12">cited from="[1991] HCA 9">delegation of powers of court</citphrase>
<citphrase id="cp5.13">cited from="[1991] HCA 9">validity</citphrase>
<citphrase id="cp5.14">cited from="[1991] HCA 9">decisions of registrar reviewable by court</citphrase>
<citphrase id="cp5.15">cited from="[1991] HCA 9">hearing de novo</citphrase>
<citphrase id="cp5.16">cited from="[1991] HCA 9">nature of hearing</citphrase>
<citphrase id="cp5.17">cited from="[1991] HCA 9">family law act 1975 (cth), s. 37a</citphrase>
<citphrase id="cp5.18">cited from="[1991] HCA 9">family law rules, o. 36a.</citphrase>
<citphrase id="cp6.0">citing from="[2010] FCA 1423">practice and procedure</citphrase>
<citphrase id="cp6.1">citing from="[2010] FCA 1423">costs</citphrase>
<citphrase id="cp6.2">citing from="[2010] FCA 1423">fixing costs in a " gross sum "</citphrase>
<citphrase id="cp6.3">citing from="[2010] FCA 1423">desirability of making an order</citphrase>
<citphrase id="cp6.4">citing from="[2010] FCA 1423">absence of evidence as to the " gross sum " to be ordered</citphrase>
<citphrase id="cp7.0">citing from="[2010] FCA 1408">practice and procedure</citphrase>
<citphrase id="cp7.1">citing from="[2010] FCA 1408">residual issues left unresolved</citphrase>
<citphrase id="cp7.2">citing from="[2010] FCA 1408">relief not to confer a windfall</citphrase>
<citphrase id="cp7.3">citing from="[2010] FCA 1408">calculation of interest for a part of a period</citphrase>
<citphrase id="cp7.4">citing from="[2010] FCA 1408">fixed costs order</citphrase>
<citphrase id="cp7.5">citing from="[2010] FCA 1408">declaratory relief</citphrase>
<citphrase id="cp8.0">citing from="[2010] FCA 866">practice and procedure</citphrase>
<citphrase id="cp8.1">citing from="[2010] FCA 866">costs</citphrase>
<citphrase id="cp8.2">citing from="[2010] FCA 866">indemnity costs</citphrase>
<citphrase id="cp8.3">citing from="[2010] FCA 866">interest up to judgment</citphrase>
<citphrase id="cp8.4">citing from="[2010] FCA 866">inchoate cause of action  bankruptcy</citphrase>
<citphrase id="cp8.5">citing from="[2010] FCA 866">trustee's right to remuneration</citphrase>
<citphrase id="cp8.6">citing from="[2010] FCA 866">work reasonably undertaken</citphrase>
<citphrase id="cp8.7">citing from="[2010] FCA 866">rule in cherry v boultbee</citphrase>
<citphrase id="cp8.8">citing from="[2010] FCA 866">the decision in baldry v jackson</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 1423" id="cs0">The background facts relevant to this long-running proceeding have been previously recounted: Wenkart v Pantzer (No 8) [2004] FCA 280 at [2] to [37] per Lindgren J; In the matter of Thomas Richard Wenkart, Wenkart v Pantzer [2007] FCA 1589 at [1] to [35] per Branson J; Wenkart v Pantzer [2009] FCA 1086 at [1] to [10]. They need not now be repeated. </sentence>
<sentence from="[2010] FCA 1408" id="cs1">In respect to the legal costs now claimed by Dr Wenkart, the submission was that he should be entitled to an order for legal costs in his favour up to 10 January 2005. That date was the date calculated by the Deputy District Registrar when issuing her certificate as being the date 28 days after the determination of the quantum of an amount to which Mr Pantzer is lawfully entitled: cf. Wenkart v Pantzer [2009] FCA 1086 at [30]. </sentence>
<sentence from="[2010] FCA 866" id="cs2">The order was made by Branson J in September 2008 for an inquiry to be held by a Registrar. That inquiry was held and, in Wenkart v Pantzer [2009] FCA 1086 , it was concluded that:

 [59] For the purposes of O 39 r 10(4) of the Federal Court Rules , it is thus concluded that the " weight " to be given to the Certificate of the Deputy Registrar dated 28 May 2009 is such that a finding should be made, consistent with the terms of the order for referral, that the date on which 28 days has passed from the determination of the quantum of an amount by way of remuneration, costs and charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005.

That decision regrettably --- with the benefit of hindsight --- did not resolve the submission previously advanced as to the application of the rule in Cherry v Boultbee : [2009] FCA 1086 at [57] . The decision, however, clearly contemplated as follows the ambit of the orders to be made:

 [61] Orders should now be made (if necessary) which give effect to the prior decisions of Her Honour Justice Branson, the Certificate as issued by the Deputy District Registrar on 28 May 2009 and the present reasons for decision. As previously contemplated by Her Honour in her reasons for decision as published in September 2008, it is appropriate that the parties have a further opportunity to make submissions as to the appropriate orders to be made --- should that be necessary.

The course of the hearing then conducted to determine the weight to be given to the Certificate is set forth in those reasons for decision --- including the reliance placed upon earlier decisions supporting each of the amounts set forth in the table and the limited additional factual material sought to be relied upon. The table, upon analysis, was really no more than an arithmetical presentation chronologically setting forth findings which had previously been made by Branson J. Whatever the table did and however it may have been prepared and presented, the " weight " to be given to the Certificate has now been resolved by the September 2009 judgment.  On 25 September 2009 reasons for yet a further decision in this long-running dispute were published: Wenkart v Pantzer [2009] FCA 1086. It was then stated that that decision and reasons would " hopefully [be] one of the last to be resolved between the parties ".  Given the conclusion of Branson J in Wenkart v Pantzer [2008] FCA 478 , and the subsequent comments made in Wenkart v Pantzer [2009] FCA 1086 , it is simply said that no further claim for relief may now be advanced.  The order was made by Branson J in September 2008 for an inquiry to be held by a Registrar. That inquiry was held and, in Wenkart v Pantzer [2009] FCA 1086 , it was concluded that:

 [59] For the purposes of O 39 r 10(4) of the Federal Court Rules , it is thus concluded that the " weight " to be given to the Certificate of the Deputy Registrar dated 28 May 2009 is such that a finding should be made, consistent with the terms of the order for referral, that the date on which 28 days has passed from the determination of the quantum of an amount by way of remuneration, costs and charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005.

That decision regrettably --- with the benefit of hindsight --- did not resolve the submission previously advanced as to the application of the rule in Cherry v Boultbee : [2009] FCA 1086 at [57] . The decision, however, clearly contemplated as follows the ambit of the orders to be made:

 [61] Orders should now be made (if necessary) which give effect to the prior decisions of Her Honour Justice Branson, the Certificate as issued by the Deputy District Registrar on 28 May 2009 and the present reasons for decision. As previously contemplated by Her Honour in her reasons for decision as published in September 2008, it is appropriate that the parties have a further opportunity to make submissions as to the appropriate orders to be made --- should that be necessary.

The course of the hearing then conducted to determine the weight to be given to the Certificate is set forth in those reasons for decision --- including the reliance placed upon earlier decisions supporting each of the amounts set forth in the table and the limited additional factual material sought to be relied upon. The table, upon analysis, was really no more than an arithmetical presentation chronologically setting forth findings which had previously been made by Branson J. Whatever the table did and however it may have been prepared and presented, the " weight " to be given to the Certificate has now been resolved by the September 2009 judgment.  Although the focus of earlier decisions may have been, for whatever reason, upon when a period of 28 days had expired when amounts exceeded $769,191.66, the fact is that the dates upon which payments were made by Mr Pantzer have received repeated attention in: the decision of Branson J in April 2008; the decision of Branson J in September 2008 when Her Honour declined to " reconsider " or " withdraw " paragraphs of her earlier decision;
and in:
 the inquiry conducted by the Deputy District Registrar. Moreover, little constraint was imposed upon the litigants when:
 the hearing was held to resolve objections which were taken to the Certificate of the Deputy District Registrar --- that hearing being a " rehearing " ([2009] FCA 1086 at [23]). It is thus concluded that it is not now open for Mr Pantzer to seek to place reliance upon factual material seeking to question the factual account now set forth in the table.  If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar ( O 39, rr 2 and 9 of the Federal Court Rules 1979 Cth ).

It was this proposed order, later made on 16 September 2008, that led to the Deputy District Registrar holding an inquiry and certifying that " the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr. Pantzer is lawfully entitled from Dr. Wenkart ... is 10 January 2005 ". A hearing to resolve an " objection " to that certificate was heard and resolved in September 2009: Wenkart v Pantzer [2009] FCA 1086. </sentence>
</citances>
<legistitles>
<title id="l0">ACTS INTERPRETATION ACT 1901 </title>
<title id="l1">ACTS INTERPRETATION ACT 1901 - SECT 10 References to amended or re-enacted Acts</title>
<title id="l2">ACTS INTERPRETATION ACT 1901 - SECT 25D Content of statements of reasons for decisions</title>
<title id="l3">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l4">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l5">FAMILY LAW ACT 1975 </title>
<title id="l6">FAMILY LAW ACT 1975 - SECT 37A Delegation of powers to Registrars</title>
<title id="l7">FEDERAL COURT RULES </title>
<title id="l8">INDUSTRIAL RELATIONS ACT 1988 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCA 2016">costs</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 2016">judgment in excess of amount of offer by applicant to two respondents prior to trial</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 2016">whether order 23 applicable</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 2016">whether in any event indemnity costs should be awarded</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1967">costs</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1967">application for costs pursuant to federal court of australia act 1976 (cth) s 43 following summary dismissal</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1967">application for indemnity costs and alternatively for costs on solicitor and own client basis</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1967">distinction between indemnity costs and solicitor and own client costs</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 1967">relevant principles when ordering costs on basis other than party and party</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 1903">contract of employment</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 1903">summary dismissal</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 1903">serious or wilful misconduct</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 1903">whether staff guidelines incorporated into employment contract</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 1903">whether damages available for loss of a chance to remain in employment</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 1903">whether a term of mutual trust and confidence is implied into employment contracts</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 1903">unlawful discrimination on the grounds of family responsibilities</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 1903">assault and battery</citphrase>
<citphrase id="cp3.0">cited from="[2007] FCA 1489">costs</citphrase>
<citphrase id="cp3.1">cited from="[2007] FCA 1489">application for costs on an indemnity basis</citphrase>
<citphrase id="cp3.2">cited from="[2007] FCA 1489">applicants reject a joint offer of compromise pursuant to fcr , o 23</citphrase>
<citphrase id="cp3.3">cited from="[2007] FCA 1489">applicants fail entirely</citphrase>
<citphrase id="cp3.4">cited from="[2007] FCA 1489">whether rejection of offer imprudent or unreasonable</citphrase>
<citphrase id="cp4.0">cited from="[2007] FCA 1341">costs</citphrase>
<citphrase id="cp4.1">cited from="[2007] FCA 1341">consolidated proceeding involving claims under different federal statutes</citphrase>
<citphrase id="cp4.2">cited from="[2007] FCA 1341">one statute containing prohibition upon award of costs</citphrase>
<citphrase id="cp4.3">cited from="[2007] FCA 1341">whether costs available to extent of claims made under other statute. costs</citphrase>
<citphrase id="cp4.4">cited from="[2007] FCA 1341">statute containing prohibition upon costs unless proceeding instituted vexatiously or without reasonable cause</citphrase>
<citphrase id="cp4.5">cited from="[2007] FCA 1341">proceeding included claims in accrued jurisdiction</citphrase>
<citphrase id="cp4.6">cited from="[2007] FCA 1341">judgment for applicant on one only of many claims in accrued jurisdiction</citphrase>
<citphrase id="cp4.7">cited from="[2007] FCA 1341">whether proceeding instituted vexatiously or without reasonable cause. costs</citphrase>
<citphrase id="cp4.8">cited from="[2007] FCA 1341">whether party's costs incurred because of unreasonable act or omission of other party.</citphrase>
<citphrase id="cp5.0">cited from="[2007] FCAFC 120">contract</citphrase>
<citphrase id="cp5.1">cited from="[2007] FCAFC 120">incorporation of terms</citphrase>
<citphrase id="cp5.2">cited from="[2007] FCAFC 120">employment contract</citphrase>
<citphrase id="cp5.3">cited from="[2007] FCAFC 120">whether particular representations in policy and procedures manual were terms of employment contract.</citphrase>
<citphrase id="cp6.0">cited from="[2006] HCA 32">berowra holdings pty ltd v gordon  workers' compensation</citphrase>
<citphrase id="cp6.1">cited from="[2006] HCA 32">plaintiff did not comply with s 151c of the workers compensation act 1987 (nsw)</citphrase>
<citphrase id="cp6.2">cited from="[2006] HCA 32">defendant did not take any point as to non-compliance until after it had made an offer of compromise pursuant to pt 19a of the district court rules</citphrase>
<citphrase id="cp6.3">cited from="[2006] HCA 32">plaintiff accepted defendant's offer of compromise after the point as to non-compliance had been raised</citphrase>
<citphrase id="cp6.4">cited from="[2006] HCA 32">whether proceedings commenced by the plaintiff invalid or a nullity because of non-compliance with s 151c</citphrase>
<citphrase id="cp6.5">cited from="[2006] HCA 32">whether procedural steps taken by the parties under the district court rules invalid or nullities because of non-compliance with s 151c</citphrase>
<citphrase id="cp6.6">cited from="[2006] HCA 32">whether defendant entitled to an order that its offer of compromise be withdrawn</citphrase>
<citphrase id="cp6.7">cited from="[2006] HCA 32">whether the concept of waiver relevant.  statutory construction</citphrase>
<citphrase id="cp6.8">cited from="[2006] HCA 32">where statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance</citphrase>
<citphrase id="cp6.9">cited from="[2006] HCA 32">construction of s 151c of workers compensation act 1987 (nsw).</citphrase>
<citphrase id="cp7.0">cited from="[2005] FCA 1528">practice and procedure</citphrase>
<citphrase id="cp7.1">cited from="[2005] FCA 1528">costs claimed against legal practitioners for alleged incompetence in propounding a notice of motion found by a full court not to be within the jurisdiction of the court. jurisdiction of the court</citphrase>
<citphrase id="cp7.2">cited from="[2005] FCA 1528">contract to enforce a settlement of a proceeding within the jurisdiction of the court being a contract between the same parties to the original proceeding can be enforced in this court</citphrase>
<citphrase id="cp7.3">cited from="[2005] FCA 1528">whether as part of the original matter or, if a separate matter as a matter arising under a law of the parliament under s 39b(1a)(c) of the judiciary act as undertakings to the court</citphrase>
<citphrase id="cp7.4">cited from="[2005] FCA 1528">enforcement of undertakings to the court by procedure short of contempt.</citphrase>
<citphrase id="cp8.0">cited from="[2004] FCA 637">privacy</citphrase>
<citphrase id="cp8.1">cited from="[2004] FCA 637">whether polling of employees by call centre on behalf of a union a breach of national privacy principles by either</citphrase>
<citphrase id="cp8.2">cited from="[2004] FCA 637">if so whether private right of action courts</citphrase>
<citphrase id="cp8.3">cited from="[2004] FCA 637">federal court</citphrase>
<citphrase id="cp8.4">cited from="[2004] FCA 637">scope of jurisdiction pursuant to privacy act 1988 (cth) copyright</citphrase>
<citphrase id="cp8.5">cited from="[2004] FCA 637">whether copyright in internal company telephone directory</citphrase>
<citphrase id="cp8.6">cited from="[2004] FCA 637">whether annotation of directory breach of copyright</citphrase>
<citphrase id="cp8.7">cited from="[2004] FCA 637">whether use of annotated directory to create electronic database breach of copyright</citphrase>
<citphrase id="cp8.8">cited from="[2004] FCA 637">whether a case for additional damages or account of profit workplace relations</citphrase>
<citphrase id="cp8.9">cited from="[2004] FCA 637">whether telephone polling of employees on behalf of a union during postal voting for s 170lk agreement done with intent to coerce</citphrase>
<citphrase id="cp8.10">cited from="[2004] FCA 637">whether proceeding instituted vexatiously or without reasonable cause costs</citphrase>
<citphrase id="cp8.11">cited from="[2004] FCA 637">where proceedings instituted under workplace relations act against one party</citphrase>
<citphrase id="cp8.12">cited from="[2004] FCA 637">further party added and other federal causes of action added</citphrase>
<citphrase id="cp8.13">cited from="[2004] FCA 637">effect of s 347 of workplace relations act</citphrase>
<citphrase id="cp12.0">cited from="[1998] FCA 699">negligence</citphrase>
<citphrase id="cp12.1">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp12.2">cited from="[1998] FCA 699">asthmatic child suffers brain damage after use of suppository prescribed by general practitioner</citphrase>
<citphrase id="cp12.3">cited from="[1998] FCA 699">whether theophylline contained in suppository caused brain damage</citphrase>
<citphrase id="cp12.4">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="cp12.5">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="cp12.6">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp12.7">cited from="[1998] FCA 699">appeal court should acknowledge such advantage</citphrase>
<citphrase id="cp12.8">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp12.9">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp12.10">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp12.11">cited from="[1998] FCA 699">conflicting evidence as to practice by general medical practitioners at relevant time</citphrase>
<citphrase id="cp12.12">cited from="[1998] FCA 699">trial judge required to choose</citphrase>
<citphrase id="cp12.13">cited from="[1998] FCA 699">advantage of trial judge in assessing witnesses</citphrase>
<citphrase id="cp12.14">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp12.15">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp12.16">cited from="[1998] FCA 699">medical negligence</citphrase>
<citphrase id="cp12.17">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="cp12.18">cited from="[1998] FCA 699">whether phenobarbitone caused damage</citphrase>
<citphrase id="cp12.19">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp12.20">cited from="[1998] FCA 699">no error shown. negligence</citphrase>
<citphrase id="cp12.21">cited from="[1998] FCA 699">manufacturer's liability</citphrase>
<citphrase id="cp12.22">cited from="[1998] FCA 699">drug contained in suppository</citphrase>
<citphrase id="cp12.23">cited from="[1998] FCA 699">lack of warning as to possible consequences on packaging</citphrase>
<citphrase id="cp12.24">cited from="[1998] FCA 699">doctor prescribing would not have read packaging anyway</citphrase>
<citphrase id="cp12.25">cited from="[1998] FCA 699">causation not established</citphrase>
<citphrase id="cp12.26">cited from="[1998] FCA 699">question of fact</citphrase>
<citphrase id="cp12.27">cited from="[1998] FCA 699">no error shown. damages</citphrase>
<citphrase id="cp12.28">cited from="[1998] FCA 699">various heads</citphrase>
<citphrase id="cp12.29">cited from="[1998] FCA 699">questions of fact</citphrase>
<citphrase id="cp12.30">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="cp12.31">cited from="[1998] FCA 699">otherwise no error shown. appeal</citphrase>
<citphrase id="cp12.32">cited from="[1998] FCA 699">appeal on questions of fact</citphrase>
<citphrase id="cp12.33">cited from="[1998] FCA 699">expert evidence</citphrase>
<citphrase id="cp12.34">cited from="[1998] FCA 699">conflict between opinions of experts</citphrase>
<citphrase id="cp12.35">cited from="[1998] FCA 699">advantage of trial judge</citphrase>
<citphrase id="cp12.36">cited from="[1998] FCA 699">principles applicable.</citphrase>
<citphrase id="cp14.0">citing from="[2011] FCA 394">industrial law</citphrase>
<citphrase id="cp14.1">citing from="[2011] FCA 394">calculation of pre-judgment interest on compensation amounts to be awarded under the fair work act 2009 (cth)  industrial law</citphrase>
<citphrase id="cp14.2">citing from="[2011] FCA 394">imposition of pecuniary penalty under section 546 of the fair work act 2009 (cth)</citphrase>
<citphrase id="cp14.3">citing from="[2011] FCA 394">where contraventions by the respondent are not considered innocent or inadvertent</citphrase>
<citphrase id="cp14.4">citing from="[2011] FCA 394">consideration of relevant matters to be regarded in exercising discretion to impose pecuniary penalty</citphrase>
<citphrase id="cp14.5">citing from="[2011] FCA 394">where adverse actions treated as one distinct course of action for penalty purposes</citphrase>
<citphrase id="cp14.6">citing from="[2011] FCA 394">where respondent not previously found to have engaged in conduct in breach of freedom of association provisions</citphrase>
<citphrase id="cp14.7">citing from="[2011] FCA 394">where consequences of conduct severe  industrial law</citphrase>
<citphrase id="cp14.8">citing from="[2011] FCA 394">whether costs should be awarded under section 570 of the fair work act 2009 (cth)</citphrase>
<citphrase id="cp14.9">citing from="[2011] FCA 394">whether costs incurred through the respondent's unreasonable act or omission</citphrase>
<citphrase id="cp14.10">citing from="[2011] FCA 394">whether the act of the respondent in refusing a settlement proposal of the applicant constitutes an unreasonable act</citphrase>
<citphrase id="cp15.0">citing from="[2011] FCA 231">costs</citphrase>
<citphrase id="cp15.1">citing from="[2011] FCA 231">where applicant successful in obtaining declaration that it had validly terminated eight of nine contracts between it and the respondent</citphrase>
<citphrase id="cp15.2">citing from="[2011] FCA 231">where respondent awarded damages for applicant's breach of the ninth contract</citphrase>
<citphrase id="cp15.3">citing from="[2011] FCA 231">where applicant's claim for declarations that respondent had contravened the corporations act 2001 (cth) dismissed</citphrase>
<citphrase id="cp15.4">citing from="[2011] FCA 231">where respondent made offer to settle proceedings which was refused by applicant and respondent exceeded offer at trial</citphrase>
<citphrase id="cp15.5">citing from="[2011] FCA 231">how order as to costs prior to date of offer should reflect parties' success on various issues</citphrase>
<citphrase id="cp15.6">citing from="[2011] FCA 231">whether respondent entitled to indemnity costs from date of offer</citphrase>
<citphrase id="cp16.0">citing from="[2010] FCA 304">costs</citphrase>
<citphrase id="cp16.1">citing from="[2010] FCA 304">whether indemnity costs or party and party costs appropriate</citphrase>
<citphrase id="cp16.2">citing from="[2010] FCA 304">where respondent made settlement proposal and achieved more favourable judgment at trial</citphrase>
<citphrase id="cp16.3">citing from="[2010] FCA 304">operation of o 23 r 11(6) federal court rules (cth)</citphrase>
<citphrase id="cp16.4">citing from="[2010] FCA 304">appropriateness of indemnity costs at common law</citphrase>
<citphrase id="cp16.5">citing from="[2010] FCA 304">party and party costs awarded   cases cited: re wilcox; ex parte venture industries pty ltd (no 2) (1996) 72 fcr 151  colgate-palmolive company v cussons pty ltd [1993] fca 536 ; (1993) 46 fcr 225</citphrase>
<citphrase id="cp17.0">citing from="[2009] FCA 571">costs</citphrase>
<citphrase id="cp17.1">citing from="[2009] FCA 571">multiple offers of compromise</citphrase>
<citphrase id="cp17.2">citing from="[2009] FCA 571">judgment in favour of party making offer</citphrase>
<citphrase id="cp17.3">citing from="[2009] FCA 571">whether party making offer entitled to costs on an indemnity basis</citphrase>
<citphrase id="cp17.4">citing from="[2009] FCA 571">whether offers made were unreasonable and imprudent</citphrase>
<citphrase id="cp17.5">citing from="[2009] FCA 571">held final offer made was reasonable and prudent</citphrase>
<citphrase id="cp17.6">citing from="[2009] FCA 571">held failure to accept final offer made was imprudent.</citphrase>
<citphrase id="cp20.0">citing from="[2008] FMCA 749">industrial law</citphrase>
<citphrase id="cp20.1">citing from="[2008] FMCA 749">application for costs</citphrase>
<citphrase id="cp20.2">citing from="[2008] FMCA 749">whether vexatious or without reasonable cause</citphrase>
<citphrase id="cp20.3">citing from="[2008] FMCA 749">whether unreasonable act or omission</citphrase>
<citphrase id="cp20.4">citing from="[2008] FMCA 749">application dismissed.</citphrase>
<citphrase id="cp21.0">citing from="[2008] FCA 792">practice and procedure</citphrase>
<citphrase id="cp21.1">citing from="[2008] FCA 792">whether indemnity costs should be awarded as a result of an offer of compromise</citphrase>
<citphrase id="cp21.2">citing from="[2008] FCA 792">no obligation to abandon a case to avoid costs</citphrase>
<citphrase id="cp21.3">citing from="[2008] FCA 792">no unreasonableness established</citphrase>
<citphrase id="cp21.4">citing from="[2008] FCA 792">no barrier to the award of costs in a separate statutory claim arises from the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp21.5">citing from="[2008] FCA 792">costs of overlapping issues fixed on a proportional basis</citphrase>
<citphrase id="cp22.0">citing from="[2008] FCAFC 30">appeal</citphrase>
<citphrase id="cp22.1">citing from="[2008] FCAFC 30">amended notice of appeal and written submissions an abuse of process</citphrase>
<citphrase id="cp22.2">citing from="[2008] FCAFC 30">appeals made available for the correction of error</citphrase>
<citphrase id="cp22.3">citing from="[2008] FCAFC 30">obligation on appellant to identify error</citphrase>
<citphrase id="cp22.4">citing from="[2008] FCAFC 30">no proper grounds of appeal identified</citphrase>
<citphrase id="cp22.5">citing from="[2008] FCAFC 30">no error in the findings of primary judge</citphrase>
<citphrase id="cp22.6">citing from="[2008] FCAFC 30">appeal dismissed costs</citphrase>
<citphrase id="cp22.7">citing from="[2008] FCAFC 30">consideration of costs limitations under the workplace relations act 1996 on other federal proceedings</citphrase>
<citphrase id="cp22.8">citing from="[2008] FCAFC 30">costs of half the consolidated proceedings awarded at first instance</citphrase>
<citphrase id="cp22.9">citing from="[2008] FCAFC 30">no error of law</citphrase>
<citphrase id="cp22.10">citing from="[2008] FCAFC 30">institution of appeal an unreasonable act</citphrase>
<citphrase id="cp22.11">citing from="[2008] FCAFC 30">costs of appeal awarded practice and procedure</citphrase>
<citphrase id="cp22.12">citing from="[2008] FCAFC 30">unrepresented litigant</citphrase>
<citphrase id="cp22.13">citing from="[2008] FCAFC 30">usual standards of behaviour required</citphrase>
<citphrase id="cp22.14">citing from="[2008] FCAFC 30">scandalous accusations of judicial misbehaviour</citphrase>
<citphrase id="cp22.15">citing from="[2008] FCAFC 30">parts of written submissions removed from the court file</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCA 394" id="cs0">In McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 , a case that dealt with the payment of costs under s 824 of the former Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), Buchanan J considered that costs could be awarded against a party for refusing a reasonable offer of settlement, on the basis it constitute " an unreasonable act or omission, [which] caused another party to the proceeding to incur costs in connection with the proceeding ". </sentence>
<sentence from="[2011] FCA 231" id="cs1">It is difficult to bring the offer within the precise terms of O 23 of the Federal Court Rules . For one thing the respondent and cross-claimant does not ask me to give effect to O 23 r 11 as to the costs before the offer. However, even if the offer does not fall within the terms of O 23 the offer was a reasonable one and one the offeror bettered at trial. It is a 'good start' and relevant to the discretion as to costs if the offeree's rejection of the offer at the time it was made was imprudent or (plainly) unreasonable: McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 (' McDonald v Parnell Laboratories (Aust) (No 2) ') at 597 [22]-[23] per Buchanan J; APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016 at [18] - [25] per Heerey J). Like Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) I need only consider if the rejection or non-acceptance of the offer was imprudent and I need not consider whether the other limb of the test is unreasonable (see Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] - [218]), or plainly unreasonable (see The Sanko Steamship Company Ltd v Sumitomo Australia Ltd [1996] FCA 22 ; Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1). </sentence>
<sentence from="[2010] FCA 304" id="cs2">In the present case, the parties' disagreement as to costs centred on the application of O 23 r 11(6) of the Rules, which commenced operation on 2 August 2008. Rule 11(6) applies in the circumstances described in paragraphs (a) and (b) of that rule, including where an applicant fails altogether to obtain relief after a respondent has made an offer of compromise. Previous statements to the effect that O 23 r 11 did not cover such a circumstance pre-date the introduction of rule 11(6): see, e.g., McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at 597 and Seven Network Ltd v News Ltd [2007] FCA 1489 ; (2007) 244 ALR 374 at 381. </sentence>
<sentence from="[2009] FCA 571" id="cs3">I am bound to follow matters of principle enunciated by the Full Court. In that regard, it may be, as Buchanan J highlights in the following passage from his judgment in McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at 597, [22] , that there is a difference in opinion at intermediate appellate level as to whether, for the purpose of satisfying a condition precedent to the awarding of indemnity costs and as an alternative to "imprudent", the rejection of an offer of compromise should be able to be described as "unreasonable" or "plainly unreasonable": In Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 ( Dukemaster) Sundberg and Emmett JJ said, in a case like the present where O 23 r 11 did not apply because an applicant had been wholly unsuccessful, that an applicant for a more generous award of costs than party-party costs 'must show that the rejection of the offer was imprudent or plainly unreasonable' (see at [7]). There has been doubt expressed about the soundness of the statement in Dukemaster that rejection of an offer, if unreasonable, must be 'plainly unreasonable' in the light of the earlier judgment of a Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] --- [218], to which Wilcox J also referred in Coshott (see Seven Network Limited v News Limited [2007] FCA 1489 at [59] --- [62]).
In the earlier of the Full Court authorities, Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432-433, [218] , the point was made that the conduct of an offeree need not be "plainly unreasonable" in order to warrant the ordering of indemnity costs because "To adopt an especially high standard of unreasonableness would operate as a fetter on the discretion to award indemnity costs and diminish the effectiveness of the Calderbank offer as an incentive to settlement. " I respectfully agree and, for that reason, would choose to follow the earlier Full Court authority were that to be critical to the resolution of the costs application. It is not though because in both Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 and Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 the alternative of imprudent rejection was acknowledged. Like Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) and, as his Honour noted (at [22]), like Heerey J in AFP Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016 at [24] --- [25], it is sufficient to assess whether the rejection of any of the offers was, "imprudent". That basis of assessment accords with the exemplar given by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited , which I have already noted, whose judgment, as Heerey J acknowledged in AFP Properties (ibid), is the locus classicus on the subject. </sentence>
<sentence from="[2009] FCAFC 40" id="cs4">7 In reliance on rule 11(6) the respondents submitted that there were no relevant matters which would lead the Court to make an order "contrary to the presumption" in the rule. In answer the appellant contended that rule 11(5) does not apply to an applicant/appellant who has been wholly unsuccessful, relying on McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 and Seven Network Ltd v News Ltd [2007] FCA 1489. On that basis the appellant asserted that an award of indemnity costs could not be made unless the respondents demonstrated that its refusal of the offer was "imprudent or unreasonable": Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 at [6] . It is clear therefore that the parties did not at that stage join issue on the applicable rule, namely rule 11(6). </sentence>
<sentence from="[2008] FCA 1776" id="cs5">11 In McDonald v Parnell Laboratories (Aust) and Another (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 Buchanan J was requested to make a gross sum costs order but declined to do so. At 600 his Honour observed there was no reason why the assessment of costs should not receive the attention of a taxing officer who is accustomed to, and experienced in, dealing with such matters. The Court finds that the same considerations apply in this instance.</sentence>
<sentence from="[2008] FMCA 749" id="cs6">In McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 Buchanan J considered the above authorities (at [16] to [18]) and said at [27]: "27. That leaves the question of costs prior to the abandonment of claims under the WR Act. The first question is whether it is possible to disentangle and separate the federal statutory claims prior to this date. Bognar v Merck Sharp  Dohme (Australia) Pty Ltd (No.2) [2008] FMCA 749 (10 June 2008)

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Last Updated: 16 June 2008

 FEDERAL MAGISTRATES COURT OF AUSTRALIA
 BOGNAR v MERCK SHARP  DOHME (AUSTRALIA) PTY LTD (No.2) [2008] FMCA 749
 INDUSTRIAL LAW --- Application for costs --- whether vexatious or without reasonable cause --- whether unreasonable act or omission --- application dismissed. Workplace Relations Act 1996 (Cth) ss.666 , 666 (1)(a), 347 , 824
 Federal Magistrates Act 1999 (Cth) ss.342
 Federal Magistrates Court Rules 2001 (Cth) r.1.03, schedule 1
 Industrial Relations Act 1988 (Cth) ss.170CS, 170DF, 170DF
 Bahonko v Sterjov [2007] FCA 1341
 Bahonko v Sterjov [2008] FCAFC 30
 Imogen Pty Ltd v Sangwin (1996) 70 IR 254
 Goldman Sachs JB Were Services Limited v Nikolich [2007] FCAFC 120
 Regional Express Holdings Ltd (ACN 099 547 270) v Clarke [2007] FCA 957
 Hatchett v Bowater Tutt Industries Pty Ltd (No.2) [1991] FCA 188 ; (1991) 28 FCR 324
 Abrahams v Qantas Airways Ltd [2007] FMCA 634
 Goodall v Nationwide News Pty Ltd [2007] FMCA 218
 Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131
 Kangan Batman v AIRC (2006) 156 FCR 275
 Maritime Union of Australia v Geraldton Port Authority [2000] FCA 16
 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestle Australia Ltd (2005) 146 IR 379
 Spotless Services Australia Ltd v Marsh SDP [2004] FCAFC 155
 Sperandio v Lynch (No.3) [2007] FCA 1243
 Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637
 Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 4) [2007] FCA 425
 McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086
 Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 4) [2007] FCA 425
 Applicant: STEPHEN BOGNAR
 Respondent: MERCK SHARP  DOHME (AUSTRALIA) PTY LTD
 File number: MLG 1485 of 2006
 Judgment of: O'Sullivan FM
 Hearing date: Written submissions
 Date of last submission: 30 May 2008
 Delivered at: Melbourne
 Delivered on: 10 June 2008
 REPRESENTATION
 Solicitors for the Applicant: Max Legal
 Solicitors for the Respondent: Freehills
 ORDERS

 (1) There be no order as to costs.
 FEDERAL MAGISTRATES
 COURT OF AUSTRALIA AT
 MELBOURNE
 MLG 1485 of 2007
 STEPHEN BOGNAR
Applicant

And

 MERCK SHARP  DOHME (AUSTRALIA) PTY LTD
Respondent

 REASONS FOR JUDGMENT
 Introduction
 On 16 May 2008 the Court made orders, for the reasons set out in Bognar v Merck Sharp  Dohme (No.1) [2008] FMCA 571 , dismissing the applicant's amended application filed 29 January 2007.  In my view and as in the case of McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 consideration of all the claims, statutory and common law in this case, required reference to the same substratum of facts to finally determine the controversy between the parties. </sentence>
<sentence from="[2008] FCA 792" id="cs7">7 Because the applicant failed altogether, the question of whether indemnity costs should be awarded as a result of the offer of compromise is not dealt with by O 23 r 11 of the Federal Court Rules . The test to be applied is whether Ms Thompson was imprudent or unreasonable (or perhaps plainly unreasonable) to reject the offer of compromise (see McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at [21] --- [23]). The difficulty which the respondent faces in its application for indemnity costs is that the only offer it made with respect to the proceedings under the HREOC Act was that the claim be dismissed with no order as to costs. Although I was invited to consider the totality of the offer I think consideration should be confined to the offer made with respect to the proceedings in which the costs order is now sought.</sentence>
<sentence from="[2008] FCAFC 30" id="cs8">30 The question whether costs with respect to separate federal claims within the original jurisdiction of the Court are affected by the restrictions on the award of costs appearing in the WR Act has not received prior attention by a Full Court. In Seven Network it was held that separate federal proceedings are not shielded from costs by s 347 of the WR Act (now s 824) notwithstanding earlier decisions of the Court to the effect that common law causes of action heard together with claims under the WR Act were so protected (see e.g. Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [61]-[70] and the cases there referred to). Seven Network was followed by the primary judge in the decision under appeal and in McDonald v Parnell Laboratories (Aust) Pty Ltd (No 2) [2007] FCA 2086. </sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 32 Jurisdiction in associated matters</title>
<title id="l2">SEX DISCRIMINATION ACT 1984 </title>
<title id="l3">WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) ACT 2005 </title>
<title id="l4">FEDERAL COURT RULES </title>
<title id="l5">FEDERAL MAGISTRATES COURT RULES 2001 </title>
</legistitles>
</case>