A long and winding road to overturn a July 2025 Federal Court judgment

The Federal Court judgment of Justice Thawley of July 2025

Does the Commissioner of Taxation have a hold over one or more judges of the Federal Court?

The Australian Taxation Office has a well-worn tactic to avoid complying with its Model Litigant Obligation.

Under the Legal Services Directions, Commonwealth entities and their lawyers must act as model litigants, which requires maintaining the highest ethical standards. This includes not requiring another party to prove a matter that the Commonwealth knows to be true.

It is said that "The Commonwealth's obligation to act as a model litigant is codified under Part 5, Division 2 of the Legal Services Directions. This duty ensures [sic, fails to ensure] that the government and its agencies behave with complete propriety, fairness, and honesty in all litigation and civil claims."

In reality it ensues no such thing.

When confronted by a claim supported by evidence that the Commissioner of Taxation has failed to comply with Court orders, hidden material evidence, denied those orders were ever made, and given undertakings to the Court only to rescind those undertakings later, the Commissioner has a path he often treads.

Summary Dismissal and Non-compliance with Federal Court Rules

When in a tight corner where the Commissioner of Taxation that he does not want to admit the truth of allegations, there are exactly three ducks that must line up:

The Commissioner of Taxation must be permitted by a judge of the Federal Court of Australia to ignore rule 16.07 of Federal Court Rules 2011 and fail to file a defence that is required under that rule.
The Commissioner of Taxation must be granted an application for summary dismissal of the claims - having not denied the truth of any of the allegations,
The Federal Court judgment in favour of the Commissioner of Taxation must make findings that there is no question of fact to be determined, and hence summary dismissal is an available option.

It may come as a surprise, but there are some Federal Court judges who go to extraordinary twists of logic, omission, and invention to ensure these three little ducks will line up just as the Commissioner of Taxation wishes. It is almost as though the Commissioner has some invisible and yet powerful sway over the mire some Federal Court judges are prepared to sink into for the sake of a few ducks.

By not filing a formal defence, the ATO avoids the requirements of Federal Court Rule 16.07, which mandates that a party specifically admit or deny every allegation of fact in an opponent's pleading. This "tactical silence" allows the ATO to avoid confirming known facts—such as the existence or concealment of the Higham Minute—without technically making a false statement to the court.

It is a legal principle that if there are questions of fact in issue, then the appropriate place for the addressing these is in a hearing of the evidence - after a defence has been filed. Once a Court identifies any question of fact it is not open to it to summarily dismiss a proceeding. An application for summary judgment cannot be used to make findings of fact regarding evidence; a full hearing of the claims is necessary once findings of fact are required.

Strategic Omission of the "Real Argument"

Both Wigney J and Thawley J avoiding addressing the argument in their judgments — which was based on numbered folio pages from official ATO files. By doing this, the court avoided the necessity of addressing the evidentiary conflict regarding the report's creation date.

During the first summary dismissal hearing for the Tax Commissioner's application, the applicant offered documents demonstrating that a "final report" was not present on Commonwealth files in 1997 though John Higham gave it in evidence on oath in 2007 that he wrote it in 1997. Wigney J did not accept this evidence or consider it in his judgment after the Tax Commissioner's counsel, Ms Firkin KC, stated she "didn't understand the documents" and requested they be excluded.

The "Alternate Set" Filed by the Commissioner

The Tax Commissioner's legal representatives had not noticed there was a separate, alternate set of documents that further evidenced the claim that the "final report" did not exist in 1997. They inadvertently filed this as evidence for the Tax Commissioner, corroborating the allegation that the "final report" was invented later. Oops.

This was a bundle of documents the Commonwealth provided to its own solicitor, Robert Cutler, in 2007. The applicant pointed out to the court that the "final report" was "conspicuous by its absence" from ATO official records.

The Folio Numbering Discrepancy: The applicant previously explained in a letter to the Commissioner of Taxation and his solicitors that official ATO personnel files used sequential, handwritten folio numbers. The applicant's assembly of these folios from one file supplied at various times showed there was no gap in the 1997 folio sequence numbers where the "final report" should have been, a fact corroborated by the Tax Commissioner's own filed evidence - the collection of documents that existed in his records.

The applicant also pointed out that when Robert Cutler filed the affidavit in 2007 which annexed the "final report" that John Higham said he wrote in 1997, he was in possession of the bundle of documents supplied by the Tax Commissioner from the ATO's personnel files. The applicant added it was unreasonable to imagine Robert Cutler did not ask John Higham where he obtained the "final report" for his affidavit when it was not among the documents on the ATO's files.

Almost 15 months later when Wigney J delivered his judgment, he claimed the "final report" did not matter, and therefore there was no question of fact to be determined. He was thus able to avoid concluding that a hearing to consider evidence was necessary. He did not mention that the solicitor for the Commissioner of Taxation filed an affidavit in 2007 when he should have known the "final report" annexed to it was a later invention and was not written in 1997.

Another question of fact that is nowhere to be found in Wigney's judgment is whether the Tax Commissioner's legal representative in 2007 - Robert Cutler of Clayton Utz - failed to disclose the Higham Minute after legal privilege he initially claimed was later waived in July 2007.

This also did not become a question of fact that would require a hearing to be resolved. Wigney J employed the simple expedient measure of not mentioning it in the judgment he delivered.

The Thawley Tangle

The Tax Commissioner followed the same path to kick the can further down the road by seeking summary dismissal of an application to set aside the Wigney judgment on the ground that is was procured by fraud.

This judgment, that Wigney's, had to conclude that there were no questions of fact to be determined, and thus summary dismissal was available. Naturally, the failure of the Tax Commissioner to comply with the Court rule requiring that a defence be filed was, again, overlooked by Thawley J.

Step 1. Fraud is not a Dirty Word

In his judgment given in July 2025, Thawley J said, some might think quite courageously at [100]:

"...even if it were established that a fraud was committed which led to Wigney J making the orders which he did, [emphasis added] that would not disturb the fact that the proceeding before Wigney J was an abuse of process which ought to have been summarily dismissed"

Step 2. Waiver of Privilege? Did someone ask, "Did Robert Cutler waive privilege in 2007?"

The claim before Wigney J alleges that legal representatives failed to disclose the "Higham Minute" to Besanko J even after legal professional privilege over related advice was waived on 2 July 2007. During a later cross-examination in 2013, the Tax Commissioner's solicitor, Robert Cutler, admitted that Clayton Utz "did not disclose that document at that time" and claimed he "didn't turn [his] mind" to the question of whether the privilege had been waived by the tender of other legal advice.

The "Real Argument" vs. The Judicial Answer

The primary argument was not a challenge to the initial existence of legal professional privilege over the Higham Minute, but rather that this privilege was subsequently waived.

The 2007 Waiver Event: The privilege was waived on 2 July 2007 during the Besanko J hearing when the Respondents' counsel tendered the McInnis advice, which explicitly referred to the Burslem advice (the basis for the Higham Minute).
The Judicial Omission: No statement regarding this waiver is to be found in the judgments of Wigney J and Thawley J. Instead, they focused on Mansfield J's earlier ruling upholding the initial claim of privilege—that no one was contesting before them.
The Impact: By focusing on the initial claim of privilege rather than the subsequent waiver, the judges effectively provided an answer to a question they were not asked, thereby insulating the Tax Commissioner from the consequences of failing to disclose the document in 2007.

And Then - Tangled Legal Webs That May Never End

Because a judgment to grant summary judgment is defined as "interlocutory", The Federal Court of Australia Act 1976 (Cth) requires an applicant to obtain leave to appeal before being allowed to appeal the judgment.

When leave to appeal is refused, there is no right to apply for special leave to appeal to the High Court - also defined in the Federal Court of Australia Act 1976.

That leaves the option of applying to the High Court for constitutional writs to review and aside the judgment to dismiss an application - where the Tax Commissioner has never filed a defence denying the allegations of fraud, and where no evidence has ever been received or considered in any court.

So:

When the application for constitutional writs to the High Court is not accepted for filing without leave of a justice...
When the application for leave to file application for constitutional writs is refused by the High Court...
When the application for leave to appeal from the judgment to refuse leave to file application for constitutional writs has been accepted...

The actual documents needed by the High Court of Australia to embark on this long and winding road, that leads nowhere can be seen on "Documents filed with an Application for Leave to appeal".

At this point, most people familiar with computer programming have flashbacks of recursive programs going into indefinite loops due to the absence of any "end-condition", or that executed, as expected, but for interminably long periods due to the large number of suspended activation records waiting to execute once the recursive steps begin to "unwind" upon the end condition eventually being reached.

Application Filed in the High Court of Australia

Form 23 – Application for leave to appeal
Note: see rule 41.01.1.

IN THE HIGH COURT OF AUSTRALIA No. of 2026

CANBERRA REGISTRY

BETWEEN: In the matter of an Application by

COLIN GEORGE DUNSTAN

for Leave to Appeal

EX PARTE APPLICATION FOR LEAVE TO APPEAL

The applicant applies for leave to appeal from the judgment of Edelman J delivered on 13 May 2026 in C7/2026, by which the learned single Justice refused the applicant’s application under r 6.07.3 of the High Court Rules 2004 for leave to issue or file a proposed application for constitutional or other writs.

Special considerations or circumstances: Not applicable

Part I: PROPOSED GROUNDS OF APPEAL AND ORDERS SOUGHT

1. The applicant applies for leave to appeal from the judgment of Justice Edelman on the following grounds:

1. Elision of distinct abuse-of-process premises

The learned single Justice erred in refusing leave to issue or file the proposed application as manifestly hopeless where the reasons elided two distinct abuse-of-process propositions:

(a) that the applicant sought to relitigate matters already litigated and determined; and

(b) that the applicant could and should have raised matters earlier. [1]

The proposed application directly answered the second proposition by contending that the applicant had previously attempted to raise the relevant matters, but was opposed by the respondents and refused leave by the Court. [2]

2. Failure to address undetermined issues

The learned single Justice erred in treating the proposed application as mere relitigation without addressing the applicant’s contention that material issues had not been determined [3] in the sense necessary to support the abuse-of-process conclusion, including:

(a) waiver of legal professional privilege following disclosure of the McInnis advice;

(b) allegations of fraud concerning the “final report” and the proceeding before Besanko J;

(c) evidence concerning Ms Orr’s belief that Mr Higham had decided not to charge the applicant and the statutory requirement for Ms Orr to then recall the applicant to duty; and

(d) the allegation that Wigney J’s judgment itself was procured by mischaracterisation of the pleaded case.

The abuse-of-process reasoning required attention to what had actually been determined, what could reasonably have been raised earlier, and whether the applicant had been prevented from raising it. [4]

3. Mischaracterisation of fraud-on-judgment and the separate fraud pathway

The learned single Justice erred in treating the proposed application as manifestly hopeless or abusive without addressing the distinction between:

(a) relitigating issues determined by Wigney J; and

(b) alleging that Wigney J’s judgment itself was procured by fraud[5] or material mischaracterisation of the pleaded case.

The latter allegation could not have been determined before Wigney J’s judgment existed. Further, in Dunstan v Morgan [2024] FCA 982, Kennett J had recognised that a separate proceeding to impeach Wigney J’s judgment for fraud was a legally available avenue and was not so clearly hopeless that filing-related relief should be refused. [6]

4. Error in treating the separate fraud pathway as necessarily abusive or hopeless

The learned single Justice erred in treating the proposed application as manifestly hopeless or abusive without addressing the procedural context recognised in Dunstan v Morgan [2024] FCA 982: namely, that a separate proceeding to impeach Wigney J’s judgment for fraud was a legally recognised avenue and was not so clearly hopeless that filing-related relief should be refused.

5. Failure to address the privilege-waiver non sequitur

The learned single Justice erred by failing to address that the proposed application identified an arguable non sequitur in the reasoning below concerning privilege: namely, that a prior decision upholding an original claim of privilege did not determine a question whether privilege had been waived later.

2. The applicant seeks orders:

Leave to appeal from the judgment of Edelman J delivered on 13 May 2026 in C7/2026.
The appeal be allowed.
The order of Edelman J refusing leave to issue or file the proposed application for constitutional or other writs be set aside.
The applicant’s application under r 6.07.3 of the High Court Rules 2004 be remitted or referred for determination by another Justice of the Court.
Such further or other orders as the Court considers appropriate.

Part II: QUESTIONS ON WHICH LEAVE IS SOUGHT

Issue 1 — r 6.07.3 and characterisation of proposed application

3. Whether a single Justice considering an application under r 6.07.3 may refuse leave to issue or file a proposed constitutional writ application as manifestly hopeless where the reasons do not address a central distinction on which the applicant contends the proposed application is not abusive.

Issue 2 — Abuse of process and undetermined matters

4. Whether a proposed application can properly be characterised as relitigation of matters already determined without identifying whether the matters relied upon were in fact determined, or whether the applicant was previously prevented from raising them.

Issue 3 — Fraud-on-judgment and failure to determine real controversy

5. Whether an allegation that an earlier judgment was procured by material mischaracterisation of the pleaded case can be treated as mere relitigation without addressing whether the alleged mischaracterisation bore upon the foundation of the earlier abuse-of-process conclusion.

Part III: ARGUMENT

1. This application is narrow

The proposed writ application concerned judgments of the Federal Court of Australia, including the judgment of Thawley J dismissing the applicant’s proceeding as an abuse of process and the later judgment of Moshinsky J refusing leave to appeal. The applicant is conscious of paragraph 6 of the reasons below, which referred to the High Court’s power to make vexatious proceedings orders. This application does not seek to refile the proposed Form 12 or reargue the whole underlying dispute. It is confined to whether the single Justice erred in refusing leave to issue or file the proposed application as manifestly hopeless under r 6.07.3.

2. The central difficulty in the reasons

The reasons below treat the proposed application as an attempt to relitigate matters already determined. That characterisation elides two different propositions: first, that matters have already been litigated and determined; secondly, that matters could and should have been raised earlier.[7]

The applicant’s proposed application answered the second proposition. It contended that he had previously attempted to raise the relevant matters, but was opposed by the respondents and refused leave by the Court. That answer was material to whether the proposed application was manifestly hopeless, abusive, vexatious or outside jurisdiction.[8]

3. The proposed application identified undetermined issues

The proposed application did not merely complain that previous courts had reached adverse conclusions. It contended that material issues had not been determined at all. Those issues included waiver of privilege, allegations of fraud, evidence concerning Ms Orr’s belief that Mr Higham had decided not to charge the applicant, and the allegation that Wigney J’s judgment itself had been procured by mischaracterisation of the pleaded case.

The abuse-of-process reasoning therefore required attention to what had actually been determined, what could reasonably have been raised earlier, and whether the applicant had been prevented from raising it.[9] The reasons below did not undertake that analysis.

4. Fraud-on-judgment was not merely relitigation

The proposed application alleged that Wigney J’s judgment itself was procured by fraud. That allegation could not have been determined before the judgment existed. It was therefore not enough to characterise the application as relitigation of matters already decided.

Nor was it sufficient to say that any fraud was immaterial because Wigney J’s proceeding was in any event an abuse of process. That reasoning assumes the abuse-of-process conclusion was independently correct. But the proposed application alleged that the fraud or mischaracterisation bore directly upon the foundation of that conclusion.

The applicant does not rely on LVR (WA) Pty Ltd v Administrative Appeals Tribunal as an authority on fraud. It is relied upon for a narrower proposition that substantial adoption of one party’s position may evidence a failure to bring an independent mind to bear on the issues required to be determined.[10]

The relevance of LVR here is not that copying or adoption proves dishonesty. The relevance is that, where the adopted position is said to mischaracterise the opposing party’s pleaded case, the question becomes whether the judgment determined the case actually pleaded or instead determined a case as characterised by the opposing party.

That distinction matters at the r 6.07.3 stage. If the proposed Form 12 application alleged that the Federal Court adopted a material mischaracterisation of the pleaded case, the application could not be dismissed as manifestly hopeless merely by treating that allegation as ordinary relitigation. The issue was whether the proposed application disclosed an arguable failure to determine the real controversy, not whether LVR itself established fraud.

5. Kennett J’s judgment reinforces arguability

The applicant relies on Dunstan v Morgan as an authority for the legal availability and arguability of a separate fraud proceeding, not as additional evidence outside the material before the learned single Justice.

Kennett J had earlier held that it was erroneous to proceed on the basis that appeal was the only means by which Wigney J’s judgment could be impugned, and recognised that a separate proceeding to impeach a judgment for fraud may be appropriate. His Honour further held that although the proposed fraud proceeding had difficulties, it was not so clearly hopeless that relief should be refused.

That history does not determine the present application, but it shows why the proposed writ application could not safely be characterised as manifestly hopeless without engaging with the distinction between relitigation and fraud on the judgment itself.

Why leave should be granted

6. Leave should be granted because the proposed appeal raises a narrow procedural question of principle concerning the operation of r 6.07.3:

1. Where a proposed constitutional writ application is refused at the filing stage as manifestly hopeless, must the single Justice’s reasons engage with the central distinction on which the applicant says the proposed application is not abusive?

7. The issue matters because a refusal under r 6.07.3 prevents the proposed application from being filed at all.[11] It is not a merits appeal from every adverse decision. It is a narrow challenge to whether the leave-to-file refusal was made on a characterisation that failed to engage with the proposed application’s central premise.

8. This question of principle warrants consideration by this Court.

9. Leave should be granted.

Part IV: COSTS

10. If the application is refused, the applicant asks that there be no order as to costs. The application is brought by a self-represented litigant and raises a narrow procedural question concerning the operation of r 6.07.3 and access to the Court’s original jurisdiction. The applicant does not seek to refile the proposed Form 12 application in this proceeding.

Part V: AUTHORITIES

1. Re Young (2020) 94 ALJR 448 at [10]–[13], [14]–[16] — r 6.07 leave-to-file screening.

2. Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [35]–[38], [73]–[79] — jurisdiction and screening where matter outside jurisdiction.

3. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602–603 — “could and should have raised earlier” depends on unreasonableness.

4. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [20]–[23], [47], [90], [99] — estoppel requires prior determination binding the party.

5. Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 at [55]–[61], [111]–[116], [145] — later issues not automatically barred merely because connected to earlier litigation.

6. UBS AG v Tyne (2018) 265 CLR 77 at [1], [63]–[64], [75]–[82], [126] — abuse of process is contextual, not mere factual overlap.

7. Dunstan v Morgan [2024] FCA 982 at [14]–[15], [23] — separate fraud proceeding recognised as an available avenue; not clearly hopeless at filing stage.

8. LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at [5], [82], [88]–[91] — constructive failure to exercise jurisdiction / failure to bring independent mind to bear; not relied upon as fraud authority.

Part VI: APPLICABLE STATUTORY PROVISIONS

The applicable provisions are set out verbatim in Annexure A

Dated 4 June 2026

....................................

Applicant

The applicant is self-represented.

Annexure A

Applicable constitutional provisions, statutes and statutory instruments

A. Judiciary Act 1903 (Cth)

Section 2 — Interpretation

Relevant definitions:

Appeal includes an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge.

Judgment includes any judgment decree order or sentence.

Justice means a Justice of the High Court and includes the Chief Justice.

Matter includes any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter.

Section 20 — Appeals from Judges of federal jurisdiction

The jurisdiction of the High Court to hear and determine appeals from judgments:

(a) of a Justice of the High Court exercising the original jurisdiction of the High Court; or

(b) of the Supreme Court of a State exercising federal jurisdiction when such jurisdiction is exercised by a single Judge; or

(d) of the Inter-State Commission;

and to hear and determine applications for a new trial of any cause or matter, after a trial before any such Justice or any such Court exercising federal jurisdiction, shall be exercised by a Full Court.

Section 34 — Appeals from Justices of High Court

(1) The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or otherwise.

(2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or otherwise.

B. High Court Rules 2004 (Cth)

Rule 6.07 — Refusal to issue or file document

6.07.1 If a writ, application, summons, affidavit or other document (the document) appears to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court, the Registrar may seek the direction of a Justice.

6.07.2 The Justice may direct the Registrar to issue or file the document, or to refuse to issue or file the document, without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

6.07.3 An application for leave for the Registrar to issue, or for leave to file, a document that is subject to the direction of a Justice under subrule 6.07.2:

(a) must be in Form 31; and

(b) must not be served on any person, unless the Court or a Justice otherwise orders.

Rule 40.01 — Interpretation

In Chapter 4 of the Rules, unless the contrary intention appears:

appeal means an appeal to the Court.

appellant, in relation to an appeal, means the person appealing.

applicant, in relation to an application for leave or special leave to appeal, means the person making the application.

application means an application for leave or special leave to appeal to the Court.

court below means the court pronouncing the judgment below.

Judge includes a Justice.

judgment includes an order, a conviction and a sentence.

judgment below, in relation to an application, means the judgment from which it is sought to appeal, and in relation to an appeal, means the judgment from which the appeal is brought.

parties, in relation to an application, means an applicant and any respondent who has filed an appearance.

respondent, in relation to an application, means a person who is required to be served with the application, other than the proper officer of the court below, and in relation to an appeal, means a person who has been served with a notice of appeal.

unrepresented applicant means an applicant to an application for leave or special leave to appeal who does not have legal representation.

unrepresented person means an applicant or respondent to an application who does not have legal representation.

Rule 40.02 — Application of Chapter 2

Without limiting the operation of Part 6 of the Rules where Chapter 4 does not make adequate provision for the taking of a step in the appellate jurisdiction of the Court, the provisions of Chapter 2 shall be applied with any modification necessary to give proper effect to those Rules in the appellate jurisdiction.

Part 41 — Applications for leave or special leave to appeal

Rule 41.01 — Initiation of application for leave or special leave to appeal

41.01.1 An application shall be in Form 23 and shall name as parties all those who were parties to the proceeding in the court below at the time of the judgment below.

41.01.2 An application shall be signed:

(a) by a legal practitioner on behalf of the applicant; or

(b) if the applicant is unrepresented—by the applicant.

41.01.3 An application:

(a) must not exceed 12 pages; and

(b) must be typed in at least 12 point (Times New Roman or equivalent font size) with line spacing of 1.5 lines.

41.01.4 An application shall be accompanied by the following:

(a) a copy of the sealed order or judgment of the court below;

(b) a copy of the reasons for the judgment below;

(i) a copy of the primary sealed order or judgment or decision; and

(ii) the reasons (if any) of the primary court or decision-maker that were before the court below;

(d) in a criminal case:

(i) the indictment; and

(ii) the transcript of entry of a plea of guilty or the summing up or charge; and

(iii) the transcript of entry of verdict; and

(iv) the Judge’s remarks on sentencing;

(e) the notice of appeal or application for leave to appeal to the court below.

Rule 41.02 — Time for filing application

41.02.1 An application shall be filed within 28 days after the judgment below was pronounced.

41.02.2 If an application is not filed within the time limited by rule 41.02.1, the applicant shall:

(a) in the application, seek an order that compliance with that time limit be dispensed with; and

(b) file and serve an affidavit explaining the failure to comply with rule 41.02.1.

Rule 41.08 — Determination of application

41.08.1 A Full Court may make an order determining an application without listing the application for hearing.

41.08.1A A Full Court may make an order under rule 41.08.1, and may publish reasons for the decision, other than in open court.

41.08.2 If an application is listed for hearing, a party who is present at the hearing, or a legal practitioner on behalf of a party, may appear and, subject to rule 41.08.3, may present oral argument.

41.08.3 The time allocated to the parties for oral argument on the hearing of an application shall be as the Court orders or, in default of any order, shall be:

(a) applicant—20 minutes; and

(b) respondent—20 minutes; and

[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602–603; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [55]–[61], [111]–[116].

[2] See also Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [20]–[23], [47], concerning the need to identify what was actually determined.

[3] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [20]–[23], [47], [90], [99].

[4] UBS AG v Tyne (2018) 265 CLR 77 at [63]–[64], [75]–[82], [126]; Timbercorp at [145].

[5] Dunstan v Morgan [2024] FCA 982 at [14]–[15], [23].

[6] Dunstan v Morgan [2024] FCA 982 at [14]–[15], [23].

[7] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602–603; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [55]–[61], [111]–[116].

[8] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [20]–[23], [47].

[9] UBS AG v Tyne (2018) 265 CLR 77 at [63]–[64], [75]–[82], [126]; Timbercorp at [145].

[10] LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at [5], [82], [88]–[91].

[11] Re Young (2020) 94 ALJR 448 at [10]–[13], [14]–[16]; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [35]–[38], [73]–[79].

Legal Notes