4. It was submitted by Mr Wheelhouse, who appeared for the defendant, that indemnity costs were awarded only in "clearly exceptional cases or very limited circumstances". In fact, the discretion has been described as "absolute and unfettered", though it is clear that it must be exercised judicially: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219; Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd [1986] FCA 85; (1986) 10 FCR 177 at 178 and Colgate-Palmolive Company v Cussons Pty Limited at 230. The exercise of this discretion has been said to be appropriate where there is "some special or unusual feature in the case to justify the court in exercising its discretion in that way" (per Brandon J in Preston v Preston at 58). In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd, Woodward J expressed the view, at 401, that it was appropriate to consider awarding costs on a solicitor and client or indemnity basis whenever it appeared that an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, because in such cases the action could be presumed to have been commenced or continued for some ulterior motive or because of some willful disregard of the known facts or the established law. His Honour observed that such cases were fortunately rare. However, it is one thing to acknowledge that circumstances justifying an order for indemnity costs occur infrequently and another to postulate some further test confining the ambit of the discretion in the manner suggested.