Federal Court of Australia

Egan v Commonwealth of Australia [2026] FCA 1104

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the Respondent.

2.    The Applicant’s originating application filed 1 September 2025 be dismissed.

3.    The Applicant pay the Respondent’s costs of these proceedings to be fixed on a lump sum basis to be determined by a Registrar in accordance with GPN-Costs, unless agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTORY OVERVIEW

1    Mr Egan has been involved in a long running dispute with the Commissioner of Taxation, represented by the Commonwealth. The dispute is as a result of a private tax ruling that Mr Egan sought in 2003, which determined that an insurance payment received because of a work-related accident, was considered normal assessable income. The insurance payments received by Mr Egan were subject to tax and Mr Egan paid those amounts of tax. Many years later in 2020, the Commissioner of Taxation determined that the 2003 private ruling was incorrect. The Commissioner repaid the amount of tax which had been overpaid by Mr Egan, on the insurance payments, together with statutory interest.

2    Later in 2023 Mr Egan sought compensation under the “Scheme for Compensation for Detriment caused by Defective Administration” (CDDA). His claim was denied and Mr Egan sought internal and external review of the decision not to award him compensation.

3    In February 2025, Mr Egan commenced proceedings in this Court (NSD 248/2025) (February Proceedings) claiming that the “Australian Taxation Commissioner” was liable for defective administration, including by being negligent and recklessly disregarding Mr Egan’s position. and because Mr Egan had been denied procedural fairness. In the February Proceedings Mr Egan claimed $300,000 for direct financial loss and $350,000 for the lost chance of an investment opportunity, costs and interest. The Respondent did not file a notice of appearance in the February Proceedings, prior to those proceedings coming to an end. Mr Egan filed a notice of discontinuance in the February Proceedings on 19 March 2025 before that was required.

4    In June 2025, Mr Egan commenced proceedings in this Court (NSD980/2025) (June Proceedings) again against the “Australian Taxation Commissioner”. The claims in the February Proceedings and the June Proceedings were the same. In the June Proceedings Mr Egan claimed $300,000 for direct financial loss, $350,000 for the lost chance of an investment opportunity, costs and interest. The Commonwealth representing the Commissioner of Taxation filed a notice of appearance in the June Proceedings on 8 July 2025. Mr Egan filed a notice of discontinuance in the June Proceedings on 30 July 2025. However, these proceedings were settled by way of a deed of settlement dated 30 July 2025 (Deed).

5    By his originating application filed on 1 September 2025, Mr Egan commenced these proceedings, seeking a “variation or cancellation” or a “variation or recission” of the Deed. Generally, Mr Egan alleges in his statement of claim that the Deed should be cancelled, set aside and/or varied on one or more of the following bases:

(1)    Undue influence;

(2)    Duress;

(3)    Non-disclosure of material facts where disclosure was required; or

(4)    Misrepresentation.

6    In his statement of claim, in these proceedings, Mr Egan seeks the following relief:

6.    Relief Sought

Particulars

(a)    The settlement and deed be varied so that the defendant facilitates an external review under its jurisdiction and complies with the recommendation of that review outcome; and

(b)    The settlement and deed be varied so that the defendant is accountable to the current IGTO Internal Review of the respondent handling of his CDDA claim;

in the alternative

(c)    The defendant pays the applicant due compensation for global economic loss damages of $300,000.

Or

(d)    The settlement and deed be completely cancelled based on the above cause of actions (1-6), allowing the plaintiff to claim damages against the defendant in alternative court proceedings.

7    The Commonwealth (by its solicitors) has now brought a summary judgment application to bring these proceedings to an end. The Commonwealth submits that there is no reasonable prospect of Mr Egan being successful on his claims to have the Deed set aside on either of the four bases advanced by Mr Egan in his statement of claim or by the further bases advanced in his submissions (if he was granted leave to advance those matters in a pleading).

8    For the reasons which follow, judgment with costs must be entered for the Respondent. There is no reasonable prospect of any of Mr Egan’s arguments succeeding.

SUMMARY JUDGMENT APPLICATION

9    The Commonwealth filed this summary judgment application on 6 February 2026. This application sought summary judgment pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules). The Commonwealth’s submissions relied on both s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act) and r 26.01 of the Rules for summary judgment.

10    The summary judgment application was set for hearing on 2 April 2026, whereby the parties appeared and made submissions. After hearing the oral submissions by counsel for the Commonwealth, Mr Egan stated that he was not as prepared as he could be and sought to respond orally, but also by way of written submissions. Leave for supplementary written submissions was granted.

11    In the Commonwealth’s supplementary reply submissions, it was observed that Mr Egan may have used generative AI in the preparation of his supplementary submissions due to some of the authorities and legislation referred to not existing. Mr Egan sought to file a document described as “Applicant’s Notice of Corrections of Citations”. He sought to file this document by leave and with the consent of the Commonwealth. Leave was granted. Mr Egan has quite properly accepted that he used generative AI in the preparation of his supplementary submissions and that he did not adequately verify all of the references and quotations before filing. Mr Egan has unreservedly apologised for his error in judgment.

12    On receipt and consideration of those submissions, it was preferable to list the matter for further oral address. A resumed hearing of the summary judgment application was held on 31 July 2026. At the resumed hearing Mr Egan clarified that certain parts of his supplementary submissions were not relied on and should be struck-out.

13    What became apparent from the supplementary written submissions was that Mr Egan sought to advance two additional bases to set aside the Deed. Those being:

(1)    unconscionable conduct; and

(2)    jurisdictional error.

14    These two bases do not currently form any part of Mr Egan’s statement of claim, and he would need leave to amend his pleading. Given that these issues are raised now against the Commonwealth’s summary judgment application it is appropriate to consider these arguments as advanced.

15    After the resumed hearing, the summary judgment application was reserved for judgment. No further orders were made for either party to provide any further submissions. On Monday 3 August 2026, Mr Egan emailed the Queensland Registry to provide what was described in the subject line of that email as “Evidence References”. Properly this email is in the nature of gratuitous submissions, for which leave was not obtained: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192] (McHugh ACJ, Gummow, Callinan and Heydon JJ); Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at [3] (Logan J). Such a course is “unsatisfactory” and “impermissible”. The time and place for making submissions and presenting arguments is at the hearing before the Court, not in communications after the hearing and without leave: Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159; [2021] FCAFC 127 at [85] (Wheelahan and Snaden JJ), also see Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [62]-[73] (Spender, Lander and Flick JJ). Although Mr Egan may be unaware of this principle (however, he did seek leave to file his notice of correction document), the orthodox and appropriate approach is that such submissions are not taken into account: In the matter of Tang & Cheung Investments Pty Ltd [2025] NSWSC 817 at [13] (Brereton J); Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49] (Leeming JA, Basten and McCallum JJA agreeing). Accordingly, I have ignored and disregarded Mr Egan’s email of 3 August 2026.

Relevant Principles - Summary Judgment

16    The Respondent brings the application pursuant to r 26.01 of the Rules. This was on the basis that Mr Egan has no reasonable prospect of success in this proceeding.

17    Rule 26.01(1) of the Rules relevantly provides that:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court.

18    Section s 31A of the Act relevantly provides in relation to summary judgment:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

…

19    The High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [17], [24] (French CJ and Gummow J) and [55] (Hayne, Crennan, Kiefel and Bell JJ) explained as follows:

Federal Court Act, s 31A

17    Section 31A(2) of the Federal Court Act provides:

“The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”

A proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success. Section 31A(1) provides for a party prosecuting a proceeding to obtain summary judgment against a respondent. The section does not limit any other powers that the Court has.

…

24    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A maybe satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

…

55    In General Steel Industries, Barwick CJ pointed out that previous decisions about summary termination of actions on the motion of a defendant had been given in cases in which the so-called “inherent” jurisdiction of a court to protect itself and its processes from abuse had been invoked, and in cases where the defendant had relied upon a particular rule of court permitting the court to strike out pleadings or dismiss an action on it being shown that a pleading “does not disclose a reasonable cause of action” or the action “being shown by the pleadings to be frivolous or vexatious”. The material available to the court might differ, depending upon which power was invoked, but all the cases emphasised the need for “exceptional caution” in exercising a power to dismiss an action summarily. As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed” (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome.

[footnote references omitted – emphasis in original]

20    It is clear that the previous test is no longer required to be met to grant summary judgment. The relevant standard is whether there is no reasonable prospect of success, which is a lower standard than previously required by the “General Steel test” of being “hopeless” or “bound to fail”: Sayed v Salvation Army Housing [2023] FCA 526 at [45] (O’Callaghan J); Scordo v Commonwealth Bank of Australia [2024] FCA 359 at [45] (Button J). However, in considering an application for summary judgment, it must always be approached with appropriate caution: Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [48] (Perram, Jagot and Beach JJ). Where there are factual disputes, summary judgment should not be awarded simply because the Court, at that stage, has formed the view that that party is unlikely to succeed on the factual issue. Nevertheless, where the facts are disputed but on a basis which is improbable, fanciful, trifling or tenuous, then summary judgment must be granted: KTW25 v Minister for Immigration and Citizenship [2025] FCA 1391 at [28] (Hill J) and the authorities therein cited. It must be determined whether there is a real question of law or fact that should be decided at trial. If the analysis establishes a clear outcome and the court is satisfied that there is no reasonable prospect of success, then summary judgment should be entered to save the parties and the Court the time and expense of the proceedings and trial: Brooks v Young (2018) 361 ALR 329 at [34]-[36] (Doyle J, with whom Kelly and Bampton JJ agreed). A proceeding will disclose “no reasonable cause of action” if it is so obviously untenable that it cannot succeed: Scordo at [49]. However, this summary process must not be used to stultify the development of the law: Spencer at [25].

This Summary Judgment Application

21    Principally, the Commonwealth relies on the terms of the Deed entered in relation to the June Proceedings to submit that the Deed is a complete answer to Mr Egan’s claim in these proceedings. The Deed contains an acknowledgement, cl 3.9 which is as follows:

3.9    Acknowledgement

(a)    The parties acknowledge that:

(i)    they enter into this deed fully and voluntarily on their information and investigation;

(ii)    they have obtained, or had a reasonable opportunity to obtain, legal advice in relation to the terms and effect of this deed; and

(iii)    they are aware that they may discover information different from or in addition to the information that they now know or believe to be true with respect to the subject matter of this deed and that it is their intention to and they do fully, finally, absolutely and forever settle according to the provisions of this deed any and all Claims which now exist, or may exist or have existed between them relating in any way to the subject matter of this deed.

22    Mr Egan’s statement of claim recognises the existence of the Deed but seeks to vitiate it and have it set aside (or varied) on the four bases, set out above at [5]. Mr Egan has also sought to raise two additional bases (see above at [13]). The Commonwealth contends that none of the bases relied on by Mr Egan have a reasonable prospect of success, once consideration is given to the communications which led to the execution of the Deed. Those communications include without prejudice communications. Both parties referred to and relied on some or all of those communications.

23    Generally, evidence of settlement negotiations is not to be adduced: s 131(1) of the Evidence Act 1995 (Cth). At the first hearing, Mr Egan was asked if he objected to the without prejudice communications being received into evidence. Mr Egan stated that he did not regard all of the communications to be without prejudice. Clarification was sought at the resumed hearing and the affidavit which annexed all of the communications (open and without prejudice) was marked as an exhibit, without objection.

24    Further and in any event such communications would fall within the exception in s 131(2)(f) of the Evidence Act, as this is a proceeding in which the making of such an agreement (being an agreement between persons to a dispute to settle a dispute) is in issue. Mr Egan’s statement of claim in these proceedings commenced with seeking “relief concerning an unfair settlement and deed contract with the defendant”, being the Commonwealth. I agree with the observation of Wigney J in Australian Securities and Investments Commission v Union Standard Internation Group Pty Ltd (Trial Ruling No 1) [2023] FCA 169 at [18]-[19], a narrow construction should not be adopted. The term “making” in s 131(2)(f) of the Evidence Act encompasses the process by which something is made. A proceeding where the making of the agreement is in issue will include one where the nature or content of its terms are in issue. It would also include where the entry into the agreement is impugned as a consequence of misrepresentation or other vitiating conduct. In such a case, the “making” of that agreement is claimed to be vitiated by that misrepresentation or misleading or deceptive conduct. As the High Court described it in Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8 at 326 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ):

Thus, in a proceeding in which the ordinary rules of evidence apply, “without prejudice” material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement. So also where what is in issue is the entry into the impugned agreement as a consequence of engagement in misleading and deceptive conduct by another party

25    As such, the affidavit relied upon, which contained all of the communication was admitted into evidence, for these reasons.

The Pleadings

26    Mr Egan pleads that he has a cause of action for variation or to set aside the Deed because, in summary:

(a)    The Deed is unfair, because of the following matters:

(i)    Undue influence, because of a failed duty to disclose information and provide clarifications sought, as he contends he was forced to accept the Commonwealth’s offer; he had no time to seek legal advice; there were misleading statements; his requests for verbal communications were rejected and he sought that the discontinuance (of the June Proceedings) was subject to the Commonwealth’s acceptance an internal review or external review by the Inspector-General of Taxation and Taxation Ombudsman (IGTO) of his claim to the CDDA, but that was rejected.

(ii)    Concealment of facts and evidence, because the Commonwealth was aware of his claim for defective administration concerning the 2003 private ruling but refused to acknowledge or disclose such facts; nonfeasance by the Commonwealth of his 2003 private ruling, which also included improper conduct and actual bias; and the Commonwealth was also aware of an Auditor-General’s report of 2001/02 regarding failures of its private ruling assessments, which Mr Egan alleges was concealed.

(iii)    False misrepresentations are claimed to have been made in open and without prejudice correspondence of 30 July 2025, just prior to entry into the Deed. The alleged false misrepresentations were that Mr Egan’s claim was statute barred, and the financial losses (direct and indirect) which the Commonwealth said was only speculative. Mr Egan contends that the interest paid was no substitute for due compensation for damages. Mr Egan further claims that the Commonwealth acknowledged the private ruling was incorrect, because it has paid interest, but claims it does not owe Mr Egan compensation by way of damages; finally that the Commonwealth had stated that two different private rulings on the same facts is common place; all of which Mr Egan says was false.

(iv)    The settlement is severally disproportionate to the scope of Mr Egan’s claim, which included that, in exchange for the discontinuance, Mr Egan sought approval for an external review which was ignored; Mr Egan claims to have proven direct financial loss; the Commonwealth has admitted its liability by paying interest and Mr Egan claims compensation, by way of direct financial loss, indirect financial loss and lost opportunity, for being held out of the monies (being the tax which was paid), all of which were foreseeable.

27    Mr Egan also pleads that he has a cause of action for compensation for the loss and use of the overpaid monies to the taxation office, which caused him financial detriment because, in summary:

(a)    Direct financial loss, because term deposits would have yielded Mr Egan an income stream of approximately $270,000. The overpaid monies lessened the amount invested causing loss;

(b)    Indirect financial loss, being the loss of the use of the overpaid monies that would have saved Mr Egan from financial loss caused by the global financial crisis and the 2011 Brisbane floods which caused the closure of his café business. But for the defective administration and the overpaid monies the sale of his home would have been avoided. Estimated loss $600,000.

(c)    Lost opportunity, the purchasing power of the overpaid monies in 2003 by way of income earning and investment potential is significant and would have allowed the purchase of an investment property in 2004 which would have yielded a capital gain of more than $500,000 and rental income of $530,000.

(d)    All of these losses were foreseeable and cannot be compensated by statutory interest. All of this damage is claimed to be caused by the defective administration.

28    It is on those bases that Mr Egan seeks the relief previously set out (above at [6]), which is to vary the Deed or alternatively order that the Commonwealth pay compensation or for the Deed to be set aside.

29    In terms of the damages claimed, these are clearly referrable to the claimed defective administration, not by way of compensation by entering into the Deed.

30    Initially, in the Commonwealth’s defence it pleaded that this court lacked jurisdiction. That was abandoned in the Commonwealth’s written submission and at the first hearing of its summary judgment application.

31    In essence the Commonwealth pleads and relies on the terms of the Deed, to defend the proceedings and contend that Mr Egan is not entitled to the relief that he seeks. The process by which the Deed was entered, including what were without prejudice communications were particularised and relied on to support the Defence. The Commonwealth submits that none of the bases relied on by Mr Egan demonstrate a reasonable prospect of successfully obtaining the relief that he seeks.

32    Mr Egan filed a reply and maintained his position. Mr Egan has also taken issue with the way the Commonwealth has pleaded its Defence.

The Submissions

33    Mr Egan sets out his arguments in detail for the bases he relies on to support his contention that the Deed is vitiated and ought to be set aside. At the core of his position is his claim of defective administration and that it is those administrative deficiencies which meant that it was not a fair process leading up to the execution of the Deed. Mr Egan refers to and relies on an Auditor-General’s report which he submits supports his claim for defective administration.

34    The Commonwealth’s overarching submission was that there is no reasonable prospect of Mr Egan demonstrating any vitiating factor that would warrant the court setting aside the Deed or, as Mr Egan claims, varying the Deed or awarding damages. Further, although Mr Egan sought reliance on the terms of the 2003 private ruling and the Auditor-General’s report, the Commonwealth contended neither was relevant, in relation to the claimed vitiating factors.

Estoppel by Deed

35    The Commonwealth’s first submission relied on estoppel by deed. The essential idea of estoppel by deed is that a party who, by entry into a deed, expresses a solemn intention to be bound by a particular proposition will, in proceedings against a party entitled to the benefit of the deed, be precluded (ie, stopped), by reason of entry into the deed from denying the truth, or at least the operation, of that proposition: Labracon Pty Ltd v Cuturich [2013] NSWSC 97 at [105] (Lindsay J). As a rule of common law, an unambiguous statement in a deed must be taken to be binding between parties and privies and therefore not admitting of contradictory proof, except where the deed is fraudulent or illegal: Greer v Kettle [1938] AC 156; [1937] 4 All ER 396 at 171 (Lord Maugham, Lord Atkin and Lord Roche agreeing, Lord Russell agreeing with separate reasons). However, the position in equity is different, as was explained (at 171):

…The position in equity is and was always different in this respect, that where there are proper grounds for rectifying a deed, e.g., because it is based upon a common mistake of fact, then to the extent of the rectification there can plainly be no estoppel based upon the original form of the instrument. It is at least equally clear that in equity a party to a deed could not set up an estoppel in reliance on a deed in relation to which there is an equitable right to rescission or in reliance on an untrue statement or an untrue recital induced by his own misrepresentation, whether innocent or otherwise to the other party.

36    That is, if there is an equitable basis upon which the Deed should be set aside, then the acknowledgment contained in the Deed itself would not operate.

37    However, in the absence of any of the vitiating factors relied on by Mr Egan, estoppel by deed would apply. Those principles would be applicable such that Mr Egan would be precluded from denying the truth or at least the operation of the Deed.

Should the Deed be set-aside (cancelled)?

38    Mr Egan advances six bases (four in his statement of claim and two others in his written submissions) for why he is entitled to the relief that he seeks, which is that the Deed be cancelled (that is, set aside).

39    The Commonwealth submitted that there was no proper basis upon which Mr Egan could properly advance the matters he did. The Commonwealth relied on the communications between the parties, from the provision of the draft deed to its execution, to support this position. Although lengthy at times, given that the Commonwealth seeks summary judgment, and the matters raised by Mr Egan, it necessary to consider these communications in some detail.

40    To consider each of the bases advanced by Mr Egan, I will first set-out the communications which led to the entry into the Deed. Second, consideration will be given to each matter relied on by Mr Egan.

What were the communications that led to the execution of the Deed?

41    Mr Egan commenced the June Proceedings on 18 June 2025.

42    Mr Egan wrote to the representatives for the Commonwealth and the Registrar of the Court on Monday, 7 July 2025 at 7.08pm in the June Proceedings, relevantly stating the following:

…

Unless your client is amenable to resolving the dispute outside court proceedings, it would not be prudent or fair to the court or your client to continue the claim, and I will discontinue it altogether with your client and consider the matter closed.

However, I appeal to your client based on the new evidence presented that fair compensation be considered, or an external review be approved.

…

43    Mr Egan wrote again on 7 July 2025 (again including the Court) at 7.35pm relevantly stating as follows:

…

Notwithstanding my email to your client, in fairness, I am prepared to make a formal agreement to consider the matter closed with your client, so there is certainty of no further disputing (sic) in this matter.

Should your client approve an external review based on the new evidence, I will also agree to accept the panel’s decision and consider the matter closed.

I believe the original facts and new evidence qualify for an approval for an external review under your client’s governing policies.

…

44    On Friday 18 July 2025, after the Commonwealth filed its notice of appearance on 8 July 2025, the Commonwealth wrote to Mr Egan stating that it shared his view regarding the desire to end this dispute to a final resolution promptly. The Commonwealth made observations in that letter regarding Mr Egan’s ability to discontinue the proceedings and whether costs would follow. Then the Commonwealth stated the following:

…

Our client offers to settle the above proceeding, and the broader dispute with you in connection with Private Ruling 34435 made on or around 31 October 2003, on the terms set out in the enclosed deed of settlement and release.

…

45    Attached to this 18 July 2025 letter was a copy of the deed of settlement. It is in the same form as that ultimately executed by the parties (apart from some inconsequential formatting regarding annexure ‘A’).

46    That offer of 18 July 2025 was open for Mr Egan to accept until 5pm on Monday 28 July 2025.

47    On Saturday 19 July 2025 at 3.04pm, Mr Egan responded and amongst other matters stated that his claim against the Commonwealth remained “viable and meritorious”. He then set-out in some detail matters which he contended supported his position. Mr Egan also noted that the Commonwealth had not commented on his request for an external review. The email finished with (apart from a formal matter regarding his address for service):

…

For the reasons mentioned above, your client’s offer is being carefully considered, notwithstanding it may be the case that guidance is taken from the pending listed case management hearing, but it does remain my preference to close this matter with your client outside proceedings. However, my final decision will be delivered in due course.

I remain committed to fairness and reasonableness with your client, and ultimate early closure as communicated.

…

48    On Sunday 20 July 2025 at 3.24pm, Mr Egan wrote further seeking to ventilate the substance of earlier complaints and disputes regarding the 2003 private ruling and what he described as the causal connection of defective administration and the consequential detriment he claims to have suffered.

49    On Tuesday 22 July 2025 at 8.53am, Mr Egan wrote a follow up email, noting that in the “absence of a response” on that day, it was likely he would allow the matter to proceed. Then, at 9.02am, the Commonwealth responded noting the 20 July 2025 correspondence and that it raised matters for which instructions would be necessary and which would be sought.

50    Later on 22 July 2025 at 10.26am, Mr Egan responded as follows, after referring to his correspondence over the weekend, noting the timeframe for a response to the offer:

…

In the alternative to allowing this matter to proceed, and should that be the case, then perhaps your client may consider an early compromise offer here, amendment to their existing settlement offer, that may in some way reasonably compensate for the relevant and meritorious matters raised in my above emails, and see the matter closed as per the deadline 28 July 2025, or before. It would be trite for me to make any further offer to settle here, given your client’s rejection of my previous reasonable settlement attempts.

After considering all the potential consequences of your client’s settlement offer, it is important for me to exercise my right of response to your client’s proposed settlement and deed before any acceptance and closure. Hence, my matters raised over the weekend.

It remains my preference to see this matter resolved and closed outside proceedings and on your (sic) before the 28 July 2025.

I am available to have a telephone conversation with you if you like.

…

51    Even later on 22 July 2025 at 2.12pm, Mr Egan wrote further, stating:

…

Apologies, but notwithstanding your client’s offer to settle and stated deadline of 28 July 2025 for acceptance, can you please confirm if your client has received approved leave of the court regarding the rules for filing and serving a response to my originating application served on 16 June 2025.

Further, does your client intend to file and provide a sealed court response to my originating application (served 19 June 2025) should the above offer in its existing form be rejected?

I am also looking ahead pre the scheduled case management hearing, should we not settle by 28 July 2025.

Can you please email a copy of the required sealed court documents that relate to any approved leave for your client at this stage, regarding a response to my originating claim.

…

52    Finally, on 22 July 2025 at 3.52pm, Mr Egan wrote stating the following:

…

I refer to my above email communications of 22 July 2025.

I appreciate, as inferred in your email, that your client has perceived control over this matter, but I am not without my reasonable rights as the applicant.

Accordingly, I would reasonably expect a satisfactory response from your client by 23 July 2025. Failing this, and regrettably, I advise your client that I will most likely elect to proceed with the application for reasons stated as per my email to you 21 July 2025. There is little point in your client responding at the 11th hour of your offer deadline (expiry), where I am left with insufficient time to consider any response and seek advice as required. I trust you can appreciate my concerns here, too, regards time. I apologise that your client’s offer has not been a straightforward one for me so far, for the reasons explained earlier.

Moreover, it is not unusual for time to be of the essence in negotiating offers of settlement; however, I do acknowledge that your client is a large Commonwealth entity with significant power.

I will be guided by the court failing receipt of relevant leave documents about a response to my originating application.

However, I do sincerely continue to appreciate your client’s shared spirit of wanting to resolve this matter promptly, outside proceedings, and waiver of any enforceable costs for a discontinuance initiated by me as per the offer, and sincerely hope we can reach a shared acceptable resolution by 28 July 2025.

…

53    On 25 July 2025 at 4.36pm Mr Egan wrote, relevantly stating:

…

In the absence of a response from your client regarding recent communications and the offer to settle, I have elected to let this legal case proceed to the scheduled hearing for the reasons already mentioned.

Notwithstanding the merits of my case, my economic circumstances and anticipated legal support will be such that I am not so concerned about any potential cost orders, but will be guided by the case management hearing.

I am available for a telephone conversation if you like.

…

54    Then on Saturday 26 July 2025 at 12.59am, Mr Egan wrote as follows:

…

Please disregard the above email.

As agreed, it is in the best interests of both parties to resolve this matter promptly.

Accordingly, I will accept your client’s offer to settle.

The deed will be witnessed and emailed to you over the weekend or by Monday 28 July 2025. I will attend to the discontinuance notice as requested.

…

55    On Monday morning, 28 July 2025 at 8.40am the Commonwealth responded noting that the offer was accepted and that the executed deed would be received later that day. At that stage, Mr Egan had not provided the Deed.

56    Later on 28 July at 11.24am, which was clarified by Mr Egan at 12.03pm, he sought a 48-hour extension regarding the offer of settlement. Mr Egan observed that an avenue of last resort was under review that morning. Instructions from the Commonwealth in relation to the extension, were sought at 12.24pm.

57    Later again on 28 July 2025 at 4.19pm, Mr Egan wrote further, by way of an attached detailed response noting he was still awaiting an answer to his request for a 48-hour extension. He also observed that no substantive response to his request for reasonable explanations and clarification had been provided to his substantive correspondence of 22, 25 and 28 July 2025. Mr Egan again outlines in detail why he believes that his case has merit. This correspondence states near the beginning:

…

I refer to my emails of 22, 25 and 28 July 2025 July (sic) and advise after further consideration of this case, that given that your client has chosen not to provide a response to my recent communication requesting reasonable explanation and clarification on critical issues before signing their offer, I will now be guided by the case management hearing this week.

…

58    Again, relevantly in this detailed correspondence (on page 5) after setting out what Mr Egan states is the evidence required to support his position of defective administration, he relevantly concludes by stating:

…

For the above reasons and those recently stated in my email of 19 July 2025, regrettably it seems prudent to let this case continue to the scheduled case hearing this week, and will be guided by its outcome going forward. I hope that the matter can at least be resolved at this point.

However, if the ATO and IGTO can show me that the decision of 2003 was not incorrect by way of defective administration causing detriment, I will close the case by accepting your client’s offer. Failing this, perhaps it is for the best that both parties be guided by the case management hearing this week.

In the meantime, should you client wish to provided responses (sic) and or want to resolve this matter before the scheduled hearing Friday this week which I encourage, please contact me.

…

59    On 28 July 2025 at 4.42pm and 4.44pm, the Commonwealth provides that it was agreeable to extend the offer it had made until 5pm on 30 July 2025. Shortly after, at 4.59pm Mr Egan effectively acknowledges the extension and seeks a substantive response to the issues he has raised. He also re-emphasises the importance of the facts involving the IGTO.

60    Then later on 28 July 2025 at 5.16pm, Mr Egan responds as follows:

…

Apologies but to be clear, as I have not received any responses to my recent requests regarding your client’s offer, or indication from you that I will, I will, as advised above, be submitting an affidavit of evidence to the court. I will email you a sealed copy before the hearing.

Without satisfactory responses, your client’s offer is rejected.

In the meantime, should your client like to reconsider responding and or resolving this matter before the hearing, please contact me.

…

61    Then, later still on 28 July at 7.38pm Mr Egan writes further, stating that he appreciates the extension and outlines an alternative compromise, described as one to “bridge the unanswered questions concerning the IGTO and relevant evidence”. Mr Egan described this alternative as “fair in the circumstances”. Mr Egan also observed that he had signed the discontinuance in anticipation of a resolution and that failing acceptance of his terms, he would consider the Commonwealth’s offer further, which was open for acceptance before 5.00pm on 30 July 2025.

62    On Tuesday 29 July 2025, at 4.31pm Mr Egan writes noting that no response had been received and he effectively provides a further counteroffer to settle. He also concluded the correspondence with “in the meantime, your client’s offer remains under consideration”.

63    On Wednesday 30 July 2025 at 8.36am, the Commonwealth responded, in detail, in an open letter, noting that the matter was listed for case management on 1 August 2025 at 9.30am. It will be necessary to return to the precise content of this letter as Mr Egan makes certain allegations regarding its contents. However, it is apparent that the purpose of the letter was to explain why the Commonwealth regarded Mr Egan’s claim as being unlikely to succeed, it also raised certain procedural matters which would need to be ventilated at the case management hearing and finally, it provided draft consent orders for consideration for the case management hearing.

64    Also, on 30 July 2025 (also at 8.36am), the Commonwealth wrote to Mr Egan on a without prejudice basis observing that the offer remained open until 5pm that day. In this letter the Commonwealth also responded to the substantive issues regarding Mr Egan’s contentions involving the CDDA previously raised by Mr Egan. Again, it will be necessary to return to the contents of this letter, given the allegations made by Mr Egan.

65    At 8.42am the Commonwealth’s representatives provided their appearance and draft orders to the Court, for the case management hearing on 1 August 2025. Mr Egan was copied to that email.

66    At 8.57am Mr Egan returned the Deed executed by him and the signed notice of discontinuance. Those documents were accompanied by a short covering email which simply stated:

Please find attached the signed deed and discontinuance.

If acceptable, I will email the discontinuance to the court before 9.30am today.

67    The Commonwealth responded noting that the notice of discontinuance should only be filed, after Mr Egan had been provided with a copy of the Deed as signed by the Commonwealth. This was confirmed by Mr Egan at 9.13am. The executed version of the Deed, by the Commonwealth was provided to Mr Egan at 12.10pm and he was requested to file the notice of discontinuance.

68    In the June Proceedings, it records the notice of discontinuance being lodged at 12.23pm on 30 July 2025. The NSW Registry wrote to the parties at 5.10pm noting that the notice of discontinuance had been filed and unless either party requested the case management hearing to be maintained, it would be vacated. The Commonwealth confirmed it was content for the case management hearing to be vacated at 5.20pm.

69    Then, on Sunday 3 August 2025 at 11.25am, Mr Egan emailed the Court (copied to the Commonwealth) and stated the following:

…

I would like to inquire above having my discontinuance annulled and the related settlement deed based on the following:

•    I only received notice of the respondent’s position (separate doc to hearing orders) regarding my application at 08:42 hours 1 August 2025, before I was required to make a response as to orders etc, as requested by the court, for the hearing the following day.

•    I had no time to seek legal advice, and or a reasonable time to fully consider the respondent’s emailed position of 1 August 2025, 08:42 hours.

•    The allegations in the respondent’s response to my application, August 2025, 0842.

•    The applicant’s application is with merit as to ATO (CDDA) defective administration, IGTO frustration of efficient administration, and denied justice, and financial detriment proven. Having had further time to consider the respondent’s stated position, their arguments are considered flawed and without merit.

•    It was not my intention to execute the settlement and deed, but receiving the respondent’s position on 1 August 2025 with less than an hour to consider, I felt forced to execute it.

•    I have requested a mutual annulment of the settlement deed by the respondent, given their conduct as mentioned above.

…

70    Shortly after this email to the Court on 3 August at 11.53am, Mr Egan wrote to the Commonwealth seeking their agreement to annul the settlement and deed. Mr Egan stated that he now had time to consider the Commonwealth’s response and set out the reasons for his disagreement. Mr Egan also wrote to the “IGTO and Internal Review” on Sunday 3 August 2025 seeking to advance a formal submission to commence an internal review investigation. He wrote again on 4 August 2025 at 10.04am attaching evidence. Mr Egan followed up this correspondence with “Internal Review” on 5 August 2025 at 12.11pm.

71    On Monday 4 August 2025 at 9.11am, Mr Egan wrote to the Commonwealth:

…

I confirm I have made my formal submission to the IGTO Internal Review department.

I trust that your client will participate in amending the settlement and deed as requested, so that they will comply with any outcome and recommendation coming from the IGTO internal review.

…

72    Mr Egan followed up this correspondence at 4.55pm, asking whether the email had been received and whether the solicitors still acted for the Commonwealth. A short response was provided at 4.59pm confirming that the solicitors still acted for the Commonwealth and that instructions were being sought in relation to the email.

73    On 5 August 2025 at 8.18am Mr Egan wrote further seeking a response to the proposed amendment to the Deed. Mr Egan stated that should agreement not be received by 4pm that day, he would commence a further application “to resolve this unfair outcome for [the June Proceedings]”. Mr Egan followed this up further at 3.14pm.

74    On 5 August 2025, the Commonwealth provided a substantive response not agreeing to annul the Deed or vary its terms. The letter rejected Mr Egan’s claims that he “had no time” to seek legal advice or that he was “forced” to enter the Deed. Mr Egan responded later on 5 August, and re-iterated his position and alleging “a very manipulative tactic” by the Commonwealth. Mr Egan stated that proceedings would be initiated in the District Court in relation to the Deed.

75    Some days later, on 13 August 2025, Mr Egan advised that proceedings would be commenced in the Federal Court to have the disputed Deed overturned on certain bases. Those (apart from the serious matters of concealment, tampering and fraud) are effectively the grounds now advanced.

76    This matter was commenced and other correspondence ensued between the parties regarding the proceedings, the pleadings and Mr Egan’s application for judgment filed on 5 January 2026, which was dismissed (before being served), without a hearing.

77    As was clear from the correspondence and accepted by Mr Egan all communications took place in writing. With that history in mind, it is necessary to consider the bases upon which Mr Egan relies on to set aside or vary the Deed. While undertaking this task, it is important to keep steadfastly in mind, that this is an application for summary judgment. The bases relied on by Mr Egan do not need to be proved at this stage. However, if those bases do not establish a reasonable prospect of success, then the Court must grant the summary judgment sought. It is convenient to re-state those bases, being:

(1)    Undue influence;

(2)    Duress;

(3)    Non-disclosure of material facts where disclosure was required;

(4)    Misrepresentation;

(5)    Unconscionable conduct; and

(6)    Jurisdictional error.

78    Before considering each of these bases relied on by Mr Egan it is necessary to first consider whether the Deed is to operate as a deed or as a simple contract. This is because if none of Mr Egan’s bases to set aside or vary the Deed have a reasonable prospect of success, and if the document is properly regarded a deed, the Commonwealth’s estoppel by deed will prevail.

Is the Deed intended to operate as a deed?

79    The essential element of a deed has been described, in broad terms, as the most solemn act that a person can perform with respect to a particular piece of property or other right. A deed is generally said to have three characteristics:

(v)    it is signed and sealed by the party whom the deed places under liability;

(vi)    it is delivered to or for the benefit of the party to whom the liability has been incurred; and

(vii)    it transfers an interest in property or creates a right or an obligation, or confirms an act pursuant to which an interest in property has already passed or pursuant to which a right or obligation is created.

See, Sinclair v Balanian (2024) 114 NSWLR 248; [2024] NSWCA 144 at [88] (Kirk JA, with whom Leeming and Payne JJA agreed); Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 368-369 (Young J); Seddon N, Seddon on Deeds (2nd edition, Federation Press, 2022) at [1.3]; Heydon JD, Heydon on Contract, (Lawbook Co, 2019) at [6.10].

80    The Deed is headed on the front page as “Deed of Settlement and Release”. The recitals refer to the document as a “deed”. Each of the operative clauses refers to the document as a “deed”. There is no reference to the document being an agreement. Clause 2.3 of the deed is described as a deed poll. That clause provides that clauses 2.1 and 2.2 operate as a deed poll in favour of and for the benefit of the Commonwealth’s current and former employees, agents and officers. The signing of the document states it is executed as a deed and records that it is “signed and sealed” by each of the Commonwealth and Mr Egan. Each signature is duly witnessed, with Mr Egan’s signature being attested by a Justice of the Peace.

81    Nowadays the requirement of sealing is only a formal one, a signature is usually sufficient without any wax, wafer, mark or any impression: NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 at [113] (Ward CJ Eq, as the President then was); also see Ex parte Sandilands (1871) LR 6 CP 411 at 413 (of each of Bovill CJ, Byles and Montague Smith JJ), Seddon on Deeds at [1.6] and Heydon on Contract at [6.30]. Even without any kind of seal, a person may be estopped from denying that the document was sealed: TCB Ltd v Gray [1986] Ch 621; 1 All ER 587 at 633-634 (Browne-Wilkinson VC).

82    Furthermore, the Deed provides that it is governed by and is to be construed in accordance with the laws of the Australian Capital Territory. The Civil Law (Property) Act 2006 (ACT) in s 219 provides for the signature and attestation of deeds as follows:

219    Signature and attestation of deeds

(1)    A deed (whether or not it affects property) must be—

(a)    signed and sealed; and

(b)    attested by at least 1 witness who is not a party to the deed, using any form of words.

(2)    Indenting is not necessary.

(3)    An instrument executed after 1 July 1920 that is signed and attested in accordance with this section is taken to be sealed if the instrument is expressed to be an indenture or deed or to be sealed.

(4)    A deed executed and attested in accordance with this section may be proved in the same way that a deed not required by law to be attested may be proved.

(5)    This section does not affect—

(a)    the execution of a deed by a corporation; or

(b)    a deed executed before 1 November 1951.

83    As the Deed is signed and attested, it is taken to be sealed, as the Deed is expressed to be a deed or to be sealed in the execution clause: s 219(3) of the Civil Law (Property) Act 2006. Hence the Deed is signed and sealed as required.

84    The document, to be a deed, must be delivered. Delivery can include a process by which the deed is handed over, and refers to an act done so as to indicate an intention to be bound: Lewski v Australian Securities and Investments Commission (2016) 246 FCR 200; [2016] FCAFC 96 at [164]-[166] (Greenwood, Middleton and Foster JJ); Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [65]-[76] (Leeming JA with whom Bell P and Brereton JJA agreed). It is well to recall that a handing over of the document, can in certain circumstances, not amount to “delivery”, it is the objective manifestation of an intention to be bound which is critical: Pittmore at [70]-[71].

85    As described at [66] above, Mr Egan unequivocally returned the executed document on 30 July 2025. The document was returned to the solicitors acting for the Commonwealth, the other party to the Deed. There was no reference to a requirement or conditions to be satisfied before the Deed would be operational from Mr Egan’s perspective. Mr Egan manifested the intention to be immediately bound by offering to provide the notice of discontinuance to the Court by 9.30am. That was approximately 30 minutes from Mr Egan’s provision of the Deed to the solicitors for the Commonwealth. Clearly that would have been prior to the Commonwealth executing the Deed. Clause 1.1 of the Deed required Mr Egan to do all things necessary to discontinue the June Proceedings, including by signing and filing the notice of discontinuance. By Mr Egan’s email stating he would “if acceptable” file the notice of discontinuance before 9.30am manifests an intention to be bound and act in accordance with the terms of the Deed. The words “if acceptable”, do not change that intention to be bound. Properly understood, Mr Egan was checking with the other party to the Deed that they were content for the notice of discontinuance to be filed, effectively forthwith. Although the Commonwealth responded that the notice of discontinuance should only be filed once the Deed was executed by it, that does not alter Mr Egan’s outward intention to be bound by the terms of the Deed.

86    Even if the Deed was in escrow until the Commonwealth executed it, it was provided to Mr Egan at 12.10pm and he then filed the notice of discontinuance at 12.23pm that same day. Again, the filing of the notice of discontinuance was in accordance with the terms of the Deed and objectively establishes Mr Egan’s intention to be bound by its terms.

87    It was not until 4 days later that Mr Egan sought to “annul” the discontinuance. That is not contemporaneous with the execution of the Deed on 30 July 2025.

88    For these reasons, the Deed was executed and was to operate as a deed.

Can the Deed be varied?

89    Part of the relief sought by Mr Egan is that the Deed be “varied”, to facilitate a review process so that the Commonwealth is responsible for and accountable to the IGTO internal review, in relation to his CDDA claim. Mr Egan does not advance a submission that the Deed has been altered or varied, or that the parties to the Deed have effected a variation, which could be done by another deed: Commissioner of Taxation v Orica Limited (1998) 194 CLR 500; [1998] HCA 33 at [114] (Gummow J). Neither does Mr Egan argue that the Deed contained an implied term, to the effect of the relief sought nor does he seek rectification to correct a mistake in the Deed (be it either a common mistake or unilateral mistake). It is apparent that Mr Egan does not allege a unilateral mistake as he pleads (at [4.1(d)]) that he sought for the discontinuance of the proceedings to be subject to the Commonwealth’s acceptance of the IGTO internal review process and/or the external review of CCDA claim, but that was rejected. Therefore, although Mr Egan did seek the deed to contain this term he knew it was rejected, and he was not operating under the mistaken belief that the Deed contained this term: see Leibler v Air New Zealand [1999] 1 VR 1 at [36] (Kenny JA) for a summary of the elements of unilateral mistake.

90    It is plain that Mr Egan seeks for the Court to vary the terms of the Deed. Courts do not generally rewrite parties’ contracts or deeds (their bargains). The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust: Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland (1976) 50 ALJR 769 at 773-774 (Gibbs J, with whom Mason J agreed). Further, courts which are asked to delete, insert or rewrite part of a contract because of what is said to be an obvious error should bear steadily in mind that imperfections, infelicities and ambiguities in contractual language commonly reflect the give and take of negotiations, or the parties’ appreciation that some obscurities are incapable of resolution. As Lord Hoffmann explained, the court does “not readily accept that people have made mistakes in formal documents”: Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23].

91    Therefore, it is not necessary to consider any further whether Mr Egan is entitled to vary the Deed; there is no reasonable prospect of success of him obtaining that relief.

92    The bases relied on to seek the variation of the Deed in his statement of claim are undue influence, concealment of facts and evidence, false misrepresentations and the settlement being disproportionate. Although the paragraphs relating to false misrepresentations and the settlement being disproportionate are numbered [5.3] and [5.4], and the claim for variation is in paragraph [4], these paragraphs appear to relate to this same request for variation. It is numbered [4.2] and then [5.3], however, the pleading which then relates to compensation start at [5]. However, none of those claims would result in Mr Egan being entitled to relief by way of a variation of the Deed. If any of those bases are sustainable, the appropriate remedy is either rescission and/or damages (of one form or another).

Undue Influence

93    Mr Egan submits that because the Deed was put forward on a “take it or leave it” basis and an inequality of bargaining power, he suffered undue influence. Mr Egan submits that the vitiating factors are evidenced by the fact that the substantive and without prejudice letters of 30 July 2025 were only received on the day that the offer was due to expire (being 5pm on 30 July 2025). This, he contends, meant he had no meaningful opportunity to obtain legal advice. He also says this was the first substantive disclosure of the Commonwealth’s legal position. Mr Egan also contends he was financially vulnerable, self-represented, permanently disabled and reliant on disputed insurance proceeds. Mr Egan also relies on what he describes as a “contemporaneous” email of 3 August 2025, wherein he states he “felt forced” to execute the Deed and he “immediately” sought its annulment. Mr Egan submits he did not sign the Deed as a free and voluntary act and it was procured in circumstances of unequal bargaining power and non-disclosure. Although Mr Egan referred to being permanently disabled, he did not elaborate on this contention and provided no evidence to support it.

94    The High Court in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 considered the principles of undue influence, noting the inherent difficulty in attempting to define it (at [30] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ)). Undue influence can be conceptualised as circumstances giving rise to such influence over the mind of the other that the act of the other is not a “free act” (at [31]), or that the decision was “not the result of the free and deliberate judgment…” (at [33]). It is whether the party claiming influence has been deprived of an ability to bring a “free choice to the decision” (at [57]), or was that party unable to make “clear, calm, rational decisions”, so they could not be described as a “free agent” (at [59]).

95    The communications which led to the execution of the Deed do not support Mr Egan’s claim of undue influence. All of those communications are in writing, such that there is no need to test any oral evidence. Further, the facts (being the communications) were not disputed, it was the effect of that correspondence which was in dispute. There is also no special relationship as between Mr Egan and the Commonwealth from which any inference or presumption should be drawn. Mr Egan commenced the June Proceedings on 18 June 2025, after having commenced and discontinued the February Proceedings, in the same terms. Mr Egan first initiated settlement discussions on 7 July 2025, by way of his two emails on that day. The Commonwealth agreed to sharing the view of a desire to promptly finally resolve the dispute and provided a deed of settlement which ultimately was signed as the Deed. This offer made on 18 July 2025 was open until 5pm on 28 July 2025.

96    Mr Egan, on many occasions (as detailed above) set-out in various levels of detail why his claim remained “viable and meritorious”. He also raised possible amendments to the terms of the deed (and settlement). Mr Egan was clearly considering the continuation of the proceedings. However, he was also considering the terms of the Deed that had been provided. It is plain from the correspondence that Mr Egan was independently considering his position. That is apparent given Mr Egan’s direct engagement in the correspondence with the requirements of the court’s process and whether leave had been sought for certain steps. There is also Mr Egan’s express reference to the case management hearing that he was “looking ahead” to, should the matter not settle. Mr Egan does refer to what he describes as the Commonwealth’s “perceived” control over the matter. However, he observed that he was not without his rights. The use of the word “perceived”, particularly in the context of the correspondence as a whole, demonstrates that Mr Egan was exercising his free will, in the context of these negotiations. On 25 and 26 July Mr Egan’s position vacillates. On 25 July he states he will proceed with the Court proceeding but on 26 July he states he will accept the terms of settlement. However, he did not provide the executed Deed with that correspondence, and it is unclear whether it was signed at that point. He describes, by future tense that the deed will be witnessed and that he will attend to the discontinuance. This communication does not evince an objective manifestation to be bound by the terms of the Deed, that is to constitute delivery.

97    Shortly thereafter, on 28 July 2025, Mr Egan seeks a 48-hour extension. This request also demonstrates that Mr Egan was acting in a clear, calm and rational manner, such that he was able to make free and deliberate decisions. If he felt deprived of an ability to make a free choice, it is more likely that he would have simply executed the Deed at this point and delivered it to the Commonwealth. He did not do that. It is apparent that he felt sufficiently free that he could request an extension of time to consider the terms of the Deed. He also again raised his substantive queries, in detail and observes that it “seems prudent” to let the case continue to the scheduled case management hearing. Implicit in that is that Mr Egan was not going to accept the terms of the settlement and he possessed sufficient “free will” to be able to make that decision. The extension Mr Egan sought was granted, which he acknowledged and stated that “without satisfactory responses, your client’s offer is rejected”. That is, without a substantive response from the Commonwealth, Mr Egan would not be settling the dispute on the terms of the Deed.

98    The substantive response was then received by way of the two 30 July letters. Within a short period of time of those letters being sent, Mr Egan delivered the Deed executed by him and the notice of discontinuance. The argument for Mr Egan must be that those letters of 30 July deprived him of an ability to bring a “free choice to the decision” or that his decision to deliver the Deed was not as a result of a free and deliberate judgment or decision. Mr Egan may have found the 30 July letters persuasive. However, I do not accept given the entire course of conduct by Mr Egan, that such letters deprived him of his “free will”, “free choice” or otherwise that he was unable to make a “clear, calm rational decision”. Mr Egan still had, on the extended timeframe, until 5pm that day to decide whether to accept the offer. Even if he felt that he should settle prior to the case management, that was not until 1 August 2025 and so, as he had previously done, he could have requested additional time.

99    Mr Egan also claims in this regard that he “had no time” to seek legal advice. He could have sought additional time to consider the 30 July letters, if he was unable to obtain advice that day (for which he still had until 5pm), as he had done previously to seek such advice. Furthermore, the Deed (which acknowledges at least a reasonable opportunity to obtain legal advice) was provided 10 days before the first deadline, and this was extended. Contrary to Mr Egan’s submission in this regard, he had a reasonable opportunity to seek legal advice.

100    The final observation of the conduct which supports a finding that Mr Egan was not deprived of his own “free will” was that he had the Deed duly witnessed by a Justice of the Peace. That is an independent and objective witness who Mr Egan must have arranged time to access and have witness his signing of the Deed. It is not clear whether this occurred on the morning of 30 July or sometime earlier. In the circumstances, it does not change the objective manifestation of the delivery of the Deed whether it was signed that day or some time earlier. However, if the execution and witnessing of the Deed by Mr Egan occurred earlier and Mr Egan retained the signed version of the Deed unbeknown to the Commonwealth and delivered it on the morning of 30 July, this shows a presence of mind to retain the executed copy of the Deed and not deliver it until he was ready to do so. It may be that Mr Egan found the letters of 30 July informative and persuasive such that he decided to then accept the settlement proposal; however, such persuasion does not mean that he was deprived of his free will.

101    For these reasons, any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of undue influence has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Duress

102    Mr Egan submits that the Deed was executed by him when he lacked critical information, was under financial duress and the Commonwealth had presented what Mr Egan described as incorrect legal assertions. Mr Egan also relies on his letter of 3 August 2025 in which he asserts that he felt forced to execute it. However, this is not contemporaneous evidence of what occurred at the time of execution on the morning of 30 July 2025.

103    It was unnecessary in Thorne (at [29]) to address duress. In Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 at [66], Beazley, Ipp and Basten JJA stated the following:

The vagueness inherent in the terms “economic duress” and “illegitimate pressure” can be avoided by treating the concept of “duress” as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party.

Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio.

(emphasis added)

104    As was recently recognised by Doyle JA (Mullins P and Brown JA agreeing) in SHRL Ventures Pty Ltd v Pedro-X Pty Ltd [2026] QCA 119 at [71]:

However, not all pressure amounts to duress, and importantly commercial, even robust commercial, pressure is not sufficient.  What however remains unclear are the limits of what pressure qualifies as that which our law recognises as illegitimate for the purposes of the law of duress.  As to that the law in Australia is somewhat unsettled.

105    Also see Djordjevic v Mondino [2023] FCA 882 at [31] (Raper J) observing that there is some ambiguity surrounding the law of duress. Also see further the reasoning in SHRL Ventures at [76]-[85].

106    That particular conduct might not satisfy the requirements of the law of duress, is clearly separate to considerations of whether the contract or deed could be set aside because on undue influence or unconscionable conduct or misleading or deceptive conduct under the Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2): SHRL Ventures at [72] and Karam at [66].

107    However, sitting as a single judge and given the express reference to Karam by the High Court in Thorne but stating it was unnecessary to decide, I should follow Karam.

108    That then requires Mr Egan to establish “threatened or actual unlawful conduct”. Mr Egan does not allege any such conduct and therefore is unable to establish this as a basis upon which the Deed should be set aside.

109    Therefore, any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of duress has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Non-disclosure of material facts – where disclosure required.

110    Mr Egan submits that he had sought disclosure and responses on multiple occasions, but without success. This non-disclosure appears to be a refusal to acknowledge the defective administration purportedly engaged in by the taxation office in relation to his 2003 private ruling, internal and external reviews, as well as the CDDA matter. The allegations of defective administration permeate many of the claimed grounds.

111    Mr Egan also refers to his requests for formal information seeking a statement of reasons and disclosure of evidence relevant to the 2003 private ruling. Mr Egan submits that such non-disclosure is inconsistent with the duty of fairness, citing Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, to support this proposition. In so far as this argument raises matters of jurisdictional error, being matters of procedural fairness or unreasonableness, these will be considered below. It is also apparent that Mr Egan advances an argument that the non-disclosure is relevant to the claimed unconscionable conduct, which will be considered below.

112    Mr Egan submits that the non-disclosure is a central issue. He submits that it operates at many different levels and tainted the circumstances in which the Deed was signed. Mr Egan raised matters of what he alleges were systemic nondisclosure which showed a pattern of behaviour. At the resumed hearing Mr Egan clarified that such matters were not directly related to the arguments to set aside the Deed. Mr Egan accepted that these matters, which he submitted established a pattern of behaviour, did not directly mean that the Deed should be set aside, but rather he thought these were important matters to raise. However, Mr Egan maintains the submission that the alleged non-disclosure of documents and information in the period leading up to the execution of the Deed is a vitiating circumstance which should lead to the Deed being set aside.

113    As is clear by Mr Egan raising concepts of jurisdictional error in relation to seeking to set aside the Deed, some of the arguments raised are misconceived. This is considered further below.

114    The ground in the statement of claim advances this nondisclosure on the basis that the disclosure was required, in the context of the IGTO internal review. Further, that the failed duty to disclose information and provide information, included a refusal to acknowledge the defective administration. That is, this failure was contrary to a duty owed or requirement to provide such information.

115    There are two fundamental difficulties with this argument for Mr Egan, first there is no requirement or duty on the Commonwealth to disclose as is contended, in the context of dealing with each other at arm’s length, for the purposes of considering a deed of settlement. It is well to recall the observations of the often cited passage of Gleeson CJ (with whom Samuels AP and Meagher JA agreed) in Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475 (recently applied by Bell CJ (with whom McHugh and Free JJA agreed) in Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd [2026] NSWCA 7 at [72]), in the context of misleading or deceptive conduct):

Even so, a question arises as to how these matters should now be regarded. Where parties are dealing at arms’ length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice. It would normally only be if there were an obligation of full disclosure that a different result would follow. That could occur, for example, by reason of some feature of the relationship between the parties, or because previous communications between them gave rise to a duty to add to or correct earlier information.

116    This is clearly applicable. Mr Egan and the Commonwealth had conflicting positions. It may have been that the Commonwealth knew something that Mr Egan did not. That may have changed Mr Egan’s position. However, no duty arises in these circumstances. The previous correspondence is set out in detail earlier in these reasons. That correspondence did not then impose on the Commonwealth a duty to correct or add to earlier information given.

117    Second, and more properly, although this is advanced as a failure to disclose, the underlying aspect to this argument is one of disagreement. That is, Mr Egan is convinced that the Commonwealth has engaged in defective administration and he seeks for the Commonwealth to acknowledge this. The Commonwealth disagrees. Properly understood, this is not a matter of disclosure.

118    For either of these reasons, there is no merit on this ground. Any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of non-disclosure has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Misrepresentation

119    Mr Egan submits that the Deed should be set aside because of misrepresentation. The misrepresentations relied on are said to arise from the 30 July correspondence. Mr Egan claims that those letters misrepresented the legal position. He relies on Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 at 432. Mr Egan purports to provide a quote from the judgment of Mason ACJ, Murphy and Deane JJ. The purported quoted passage does not exist. I will not replicate it here, lest that increase the occurrences of such fictitious quotes. To ensure this was not simply some difference between different reports (however unlikely), the version of Taylor (not only from the authorised reports, being the Commonwealth Law Reports), but also the unreported version at [1983] HCA 5 as well as the reports of (1983) 57 ALJR 197 and (1983) 45 ALR 265 were checked. Of course, all reports were consistent, and none contained the passage Mr Egan purported to quote and rely on.

120    As was earlier observed, Mr Egan did provide a notice of correction for errors created by generative AI. This was not one of the corrections. It is apparent that on the possible use of generative AI being raised in the Commonwealth’s submissions, and specific examples being given, Mr Egan has only addressed those matters (apart from one other matter not raised regarding a case of Gillespie v Commissioner of Taxation (2001) 49 ATR 1012; [2001] AATA 1009 (Senior Member Pascoe) which Mr Egan described as a factual correction). However, the Commonwealth’s submissions expressly stated it was providing examples and that a complete table had been prepared and could be provided. However, given this error in the quote from Taylor it is clear that Mr Egan has not carefully reviewed his entire submissions for all possible errors. All persons appearing before the Court have a duty to verify the case law and legislation referred to and relied on: JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976 at [103] and the authorities referred to therein.

121    The passage which Mr Egan may seek to rely on from Taylor is as follows (at 432, Mason ACJ, Murphy and Deane JJ):

It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.

122    In this context, it should also be observed that the purported quoted passage of Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64 was also incorrect, however this was the subject of correction by Mr Egan.

123    Heydon on Contract helpfully describes an actionable misrepresentation succinctly as “an incorrect statement which affirms, denies, or otherwise relates to an existing or past fact which induces a contract” (at [14.10]). A useful distillation of the relevant principles was provided by Layton J in Mitchell v Valherie (2005) 93 SASR 76; [2005] SASC 350 at [109] (footnotes omitted):

A misrepresentation is a false statement of a past or existing fact.

The falsity of a representation cannot be demonstrated except by reference to a statement of fact.

The representation may be express or implied.

Falsity is not established simply be (sic) proving the literal untruth of a wide representation where the literal meaning could not have been intended.

A misrepresentation of fact must be distinguished from promises, predictions, advice, and expressions of opinion, belief or intention.

The expression of an opinion or ‘puffery’ does not amount a representation of a matter of fact.

‘Puffery’ refers to exaggeration, particularly in the context of advertising to attract potential purchasers.  It has particularly been noted by courts that it often accompanies the sale of real property.

Whether or not there has been a misrepresentation as to fact must be determined having regard to the context and to the surrounding facts and circumstances, and must also be considered in its totality.

It is wrong to select words which alone would be likely to mislead, but when viewed in their context, were not capable of misleading.

In considering whether there is a misrepresentation, consideration is to be given to the likely class of persons who will be affected by the misrepresentation. That class may include the inexperienced, the gullible as well as the astute.

124    As is recognised in the above principles, a misrepresentation must be distinguished from a statement of opinion or belief. The question whether a statement can amount to a representation capable of founding a claim in misrepresentation must depend on the words involved in the context in which they were so used: Kyle Bay Ltd v Underwriters Subscribing Under Policy 019057/08/01 [2007] EWCA Civ 57 at [30]-[32] (Neuberger LJ, Wilson and Ward LJ agreeing).

125    To the above must be added Chapter 13 of the Civil Law (Wrongs) Act 2002 (ACT). This legislation, as well as abolishing the merger doctrine and the rule in Seddon’s case (Seddon v North Eastern Salt Co Ltd [1905] 1 Ch 326 (Joyce J)), provided a discretionary remedy of damages in lieu of recission.

126    With those legal principles in mind, it is then to consider the matters relied on by Mr Egan.

127    From the open letter dated 30 July, Mr Egan relies on the following. The particular words Mr Egan relied on will be emphasised, however as is clear from the above principles, these words must be viewed in context.

1    Your claim for damages is unlikely to succeed

Having carefully considered all of the matters raised in your originating application, we consider that your claim for damages is highly unlikely to succeed.

First, at paragraphs 9 to 15 of your originating application, you allege what you describe as ‘defective administration’. That is not a cause of action recognised by Australian courts. …

…

Second, your claim in negligence is highly unlikely to succeed. There are numerous reasons for this, but the first and most significant reason that it is highly unlikely that the Court will find that our client owed you the duty of care you have alleged. …

…

Third, the limitation period appears to us to have expired on your negligence claim (and any other claim in tort that you may bring in relation to the private ruling). That is because:

…

Where a limitation period has expired, this means that the claim is not maintainable. The claim is sometimes referred to as being ‘statue barred’. The short point is that claims made outside the limitation period will fail, and your claim has been made at least 15 years after the expiration of the applicable limitation period. …

Fourth, our client paid you interest calculated in accordance with the Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth). …

Fifth, your claim to have suffered loss on the basis that you would have invested the overpaid tax in real estate, or avoided other losses, strikes us as pure speculation. …

…

[emphasis added]

128    That letter also commenced with the following opening paragraph:

The purpose of this letter is to:

(a)    explain to you why we consider your claim is highly unlikely to succeed;

(b)    raise certain procedural matters with you, which we anticipate will need to be ventilated at the case management hearing; and

(c)    seek your consent to the enclosed orders being made at that hearing.

129    From this Mr Egan submits that the words “highly unlikely to succeed”, “statute-barred” and “speculation” were each a misrepresentation. He contends that each was false and was without any detail. Mr Egan also observes that the letter advanced certain procedural deficiencies and proposed consent orders for the case management hearing, which sought a response by noon the next day. It is unnecessary to set-out these matters. However, it is all of these matters which were said to overwhelm Mr Egan and were based on misrepresentations.

130    However, reading the letter as a whole, the statements relied on are clearly statements of opinion. These are not statements of present or past fact. The Commonwealth was providing its opinion as to Mr Egan’s prospects of success in the June Proceedings. In the resumed hearing, Mr Egan confirmed that he disagreed with the Commonwealth’s assertion, which he described as “it’s [the Commonwealth’s] … interpretation of facts”. However, that he sought to disagree with their opinion or belief, is not a misrepresentation of the required kind to be actionable.

131    From the without prejudice letter on 30 July, Mr Egan relies on the following aspects, again the parts relied on are emphasised.

2    Response to your contentions about the merits of the CDDA decisions

Your claim under the Scheme for Compensation for Detriment caused by Defective Administration (CCDA Scheme) made on 16 September 2023 CDDA Scheme has been the subject of detailed consideration by officers employed in the ATO, who rejected your claim and provided detailed reasons.

We note that you have contested the merits of those decisions. As we read your correspondence, you contend that the CDDA decisions were incorrect on the merits, and that there was defective administration for which you should be compensated, because the private ruling issued to you on 31 October 2003 was inconsistent with ‘published ATO case precedents, directives and practice standards’, resulted from a failure to afford procedural fairness and avoided the substance of your accountant’s application for a private ruling.

We take it that you press for a finding of defective administration and additional compensation beyond the interest of $49,324.79 already paid to you.

Our client does not accept that the CDDA decisions made by its officers were incorrect on the merits.

While we appreciate you do not accept that it would or should be acceptable for administrative decision makers to reach different conclusions on the same evidence, as the preliminary decision on your CDDA claim issued by our client on 5 February 2024 explains, administrative decision-makers regularly reach different conclusions on the same evidence. The issue of an amended notice of assessment does not mean that the initial assessment was wrong, defective or negligent. We would add that it also does not mean the initial assessment or decision was made maliciously.

…

You have referred to findings you say have been made by various reviews in relation to private rulings issuer by officers of the ATO. Putting to one side whether your consequence accurately characterises or summarises the findings of those reviews, general findings of the kind you have referred to do not assist your CDDA or legal claims one way or the other. Each CDDA and legal claim will turn on its own facts, and for the reasons explained above, in our open correspondence today and the CDDA decisions, your CDDA and legal claims lack merit.

…

[emphasis added]

132    None of the matters relied on by Mr Egan amount to a misrepresentation of present or past fact. The above passage from the without prejudice letter contains some matters of fact and some matters of opinion. Mr Egan submits that this last paragraph set out above, contains a misrepresentation. He contends that what occurred in relation to the 2003 private ruling is simply unacceptable, it is contrary to particular policies, including the Auditor-General reports he referred to and therefore a misrepresentation. Mr Egan contends that the initial assessment (contrary to the statement in the letter) was wrong and therefore a misrepresentation.

133    It is clear that the Commonwealth disagrees with the position advanced by Mr Egan. It is also clear that Mr Egan disagrees with the Commonwealth’s position and Mr Egan’s disagreement is recorded in the letter.

134    Considering each alleged statement in its proper context, and not in isolation, each are clearly a statement of opinion or belief. These are statements of the Commonwealth, by its representatives, stating their opinion or belief as to its position in relation to the June Proceedings. There is no evidence that these opinions were not honestly and genuinely held.

135    Mr Egan also contends that silence constitutes a material non-disclosure and demonstrates that the Deed was advanced without addressing the underlying jurisdictional defects. This is dealt with below, under the arguments for jurisdictional error.

136    For these reasons, there is no merit in this ground. Any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of misrepresentation has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Unconscionable conduct

137    Although not pleaded in his statement of claim, in his submissions Mr Egan sought to rely on arguments of unconscionable conduct to support his contention that the Deed should be set aside. In this regard Mr Egan submitted that he was given less than one hour to sign the Deed and he was in a financially disadvantageous position, which the Commonwealth knew. Mr Egan relies on a statement from Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14 at 461 (Mason J). Originally, the statement of Mason J provided by Mr Egan was incorrect. However, by the notice of correction, Mr Egan did correctly refer the Court to the actual passage, as follows:

Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.

138    To the above passage must be added the following, also from Mason J (at 462):

…whenever one party by reason of some condition of circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created

139    However, Mason J clarified that this inequality of bargaining power alone would not suffice (at 462). Deane J described it thus (at 477):

That weakness constituted a special disability of Mr. and Mrs. Amadio in their dealing with the bank of the type necessary to enliven the equitable principles relating to relief against unconscionable dealing. Put more precisely, the result of the combination of their age, their limited grasp of written English, the circumstances in which the bank presented the document to them for their signature and, most importantly, their lack of knowledge and understanding of the contents of the document was that, to adapt the words of Fullagar J. quoted above, they lacked assistance and advice where assistance and advice were plainly necessary if there were to be any reasonable degree of equality between themselves and the bank.

140    More recently in Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 at [39] (Kiefel CJ, Keane and Gleeson JJ) described the position as follows, but such considerations should not be understood to be elements of a cause of action in tort (footnotes omitted):

In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a “special disadvantage” vis-à-vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party’s disadvantage.

141    The following was also stated regarding the “special advantage” (at [40]) (footnotes omitted):

In this field of discourse, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.

142    Mr Egan initially raised some additional aspects to this argument (and within the considerations of undue influence, the arguments crossed over somewhat) but expressly withdrew them at the resumed hearing (confirming his statements in the notice of correction).

143    Mr Egan submits that the elements are satisfied because:

(a)    He suffers from a special disability in the form of long-term financial vulnerability and the absence of legal representation.

(b)    The Commonwealth had full knowledge of that special disability.

(c)    The Commonwealth took unconscientious advantage by withholding its legal position until immediately before the court event, imposing a same day deadline (that is, with less than an hour) and concealing that the original private ruling file was no longer accessible.

144    Mr Egan has not produced any evidence to establish his claimed “long-term financial vulnerability”. He has also not relied on any authority which of itself would support this alone, as being sufficient to amount to a special disadvantage. It should also be observed that Mr Egan does not make this argument on the basis that he was subject to poverty (as described by Fullagar J) but vulnerability. Mr Egan did not elaborate on what was meant by this claimed vulnerability.

145    An absence of legal representation is akin to an inequality in bargaining power, and of itself, would be insufficient to amount to a special disadvantage, as required. As Daly AsJ observed with which I agree and adopt, in Rodolico v Rodolico [2020] VSC 535 at [39] (footnotes omitted):

The proposition that lack of legal representation can, of itself, amount to a special disadvantage was rejected by Sloss J in Commonwealth Bank of Australia v Stephens, by Robb J of the Supreme Court of New South Wales in Valenzuela v Commonwealth Bank of Australia, and, most recently, by Holmes CJ in Collins v Queensland; where her Honour stated as follows:

Mr Collins did not adduce any evidence on which I could make a finding that he was subject to any special disadvantage. His affidavit said nothing as to his financial position. He made the allegation in his submissions that he lacked financial and legal resources but did not provide any detail, let alone suggest that this position had been conveyed to the respondent. He had been unrepresented earlier in the litigation, and one might infer from that, as the respondent acknowledged in its Points of Defence, that he had not sufficient means to afford legal representation at a trial or in interlocutory proceedings; but that could by no stretch of the imagination amount to special disadvantage. Nor had the respondent any reason to suppose the existence of any such disadvantage.

[emphasis added by Daly AsJ]

146    As such the lack or absence of legal representation of itself could not establish the special disadvantage claimed. It may, in particular circumstances be a factor which compounded with other indicia may provide a basis of special disadvantage: Rodolico at [40]. In the cases referred to by Daly AsJ at [40] to support this proposition, all apart from one (Nemeth Australian Litigation Funders Pty Ltd [2014] NSWCA 198) involve multiple factors together with an absence of legal representation or legal advice as a compounding factor in determining whether there was a special disadvantage. The consideration in Nemeth was somewhat different. In Nemeth, the appellant’s disenchantment with lawyers or the absence of legal advice, was not held to be a special disability: at [147] (per Gleeson JA, Meagher and Leeming JJA agreeing). This was considered in the context of medical evidence which was sought to support the appellant’s state of mind [146]-[151]. A lack of legal representation or legal advice, without more, does not constitute a special disadvantage.

147    Mr Egan has also not established that the Commonwealth was aware of his financial vulnerability.

148    In terms of an absence of legal representation, although Mr Egan has been self-acting, there is no evidence that he has not, at any time, obtained or at least had the opportunity to obtain legal advice.

149    However, even if the above factors (at [143(a)]) were found in Mr Egan’s favour (which is unnecessary to decide) Mr Egan’s argument fails upon a consideration of the Commonwealth’s position. It was not unconscionable for the Commonwealth to provide the substantive letters of 30 July 2025. In context, Mr Egan had received the version of the deed of settlement on 18 July 2025, ultimately some 12 days prior. The suggested shortness of time is not supported by the chronology of events. Further, Mr Egan had already asked for and received an extension of time to consider his position in relation to whether or not to accept the terms of the Deed. Mr Egan could have requested a further extension. That could have been for beyond the first case management hearing. The terms of the Deed as then proposed were for the Commonwealth not to enforce its costs arising from the discontinuance of the June Proceedings. As such, if the terms had remained the same, there would have been no material change to Mr Egan’s position.

150    In terms of the Commonwealth stating its opinion in the 30 July letters, it is clear that Mr Egan disagrees with that opinion of his case. As such, it is difficult to understand how stating such a position could be unconscionable, in the sense that the Commonwealth (being the stronger party) was acting in some form of unconscientious exploitation to Mr Egan’s (the weaker party’s) disadvantage.

151    The terms of the Deed were that the Commonwealth would not enforce any costs arising from the June Proceedings, and Mr Egan would discontinue the June Proceedings. This would settle all of the “Dispute” (as defined) surrounding the 2003 private ruling. There is no basis to find that the Commonwealth took unconscientious exploitation of Mr Egan’s position. It gave Mr Egan time to consider his position including by way of the extension and the provision of the deed early, some 12 days beforehand.

152    None of the bases articulated in Mr Egan’s submissions support a finding of unconscionable conduct. Any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of unconscionable conduct has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Jurisdictional error

153    This ground, which occupied many, many pages of Mr Egan’s submissions, is wholly misconceived. Mr Egan relies on many administrative law concepts such as a denial of procedural fairness, unreasonableness, fairness in decision-making and the like to submit that there is a jurisdictional error. He argues that these matters undermine the validity of the Deed, because the 2003 private ruling is the subject of jurisdictional error. It is only under this possible ground that the terms of 2003 private ruling itself or the terms of any Auditor-General report could be relevant.

154    As the learned authors of Judicial Review of Administrative Action and Government Liability (Aronson M, Groves M and Weeks G (Thomson Reuters, 2022)), observe at [1.110] jurisdictional error is a conclusion reached after what is commonly a close analysis of the governing law, the generic principles of judicial review and the particular circumstances of the matter itself. It is a conclusion that the impugned decision lacks legal force or effect. The process of judicial review of administrative action; with such action usually being in the form of a decision, is by means of the process just outlined. Although it can well be accepted that this is not a straight forward proposition, it has no application to seek to set aside the Deed.

155    The Deed is not an administrative decision or an administrative action, to which these principles can or would apply. It is insufficient, as Mr Egan seeks to advance, that an underlying part of the matters compromised in the Deed (being the 2003 private ruling) may be subject to some form of error.

156    That is sufficient to deal with these arguments. Any claim for the Deed to be set aside or cancelled or any claim for damages by Mr Egan on the basis of jurisdictional error has no reasonable prospect of success. There is no real question of law or fact on this basis which needs to be decided at a trial.

Model Litigant

157    Finally, one last matter must be stated. Mr Egan also sought, throughout his written submissions to make allegations that the Commonwealth has breached its model litigant obligations. I gratefully agree with and adopt the observation of Derrington J in Tran v Minister for Home Affairs [2019] FCA 1126 at [34], as follows:

34    The appellants submitted the conduct of the legal representatives of the Minister was contrary to the Model Litigant Rules, being a standard of professional conduct prescribed by the Commonwealth Attorney-General, which those acting on behalf of the Commonwealth in litigation are bound to follow. The rules are issued under s 55ZF and are Appendix B to the Legal Services Directions 2017. However, nothing mentioned in those very high standards of professional conduct creates rights for other parties to the litigation. The consequences for a failure to meet those exacting standards are found in item 14.1 of the Directions and there is nothing which suggests that other parties in litigation are entitled to rely on their non-observance as a foundation for gaining some forensic advantage. Indeed, s 55ZG(2) provides that compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General.

158    These observations have also been endorsed by Griffiths J in The Environment Centre NT Inc v Minister for Resources and Water (No 2) (2021) 399 ALR 68; [2021] FCA 1635 at [204] and O’Bryan J in Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 at [64].

159    Even if there were breaches of such obligations (which I do not decide), that is not a matter that other litigants can rely on in the proceedings, it does not create rights for those other parties. As such, it is unnecessary for any of these submissions to be considered further.

Conclusion

160    It is clear that Mr Egan has felt that this entire administrative process has been unfair and deficient. However, none of the grounds or arguments advanced by Mr Egan provide a proper basis to set aside the Deed. Nor do they provide any basis to claim compensation, by way of damages. The Court will uphold a valid compromise and not allow parties to re-open them just because they later perceive they made a bad deal: Kyle Bay Ltd v Underwriters Subscribing Under Policy 019057/08/01 [2006] EWHC 607 (Comm) at [46]-[47] (Hirst QC, Deputy High Court Judge) (upheld [2007] EWCA Civ 57 at [30]-[32] (Neuberger LJ, Wilson and Ward LJ agreeing) or they later came to regret: Collins v State of Queensland [2020] QSC 154 at [36]-[37] (Holmes CJ).

161    None of the vitiating factors as alleged by Mr Egan have a reasonable prospect of success and there is no need for a trial. As there is no proper bases to set aside the Deed, the estoppel by deed operates against Mr Egan and he is precluded from denying the Deed, and its operation: Labracon at [105].

162    As such, summary judgment must be given for the Respondent, with costs.

Associate:    

Dated:    11 August 2026