Federal Court of Australia

Rivas v Minister for Finance (Adjournment Application) [2025] FCA 178

ORDERS

THE COURT ORDERS THAT:

1.    The hearing of the substantive application for judicial review listed on 12 March 2025 be vacated.

2.    Orders 3, 4 and 5 of the Orders dated 14 November 2024 be set aside.

3.    Costs of the interlocutory application filed 28 February 2025 be reserved.

AND, THE COURT DIRECTS THAT:

4.    The parties contact the Chambers of Justice Lee on the earlier of either the adverse outcome of the applicant’s application for leave to appeal, or the outcome of the substantive appeal, from the interlocutory decision made 21 February 2025.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    The background to these proceedings is set out in Rivas v Minister for Finance (Privilege Issue) [2025] FCA 145. That judgment, which was delivered ex tempore on 21 February 2025, concerned an interlocutory application that had been filed seven days earlier.

2    The matter was listed and determined with celerity because I considered, given the nature of the proceedings, the Court should do what it could to preserve the existing hearing date which was set (at a case management hearing on 14 November 2024) to occur on 10 March 2025. Due to Full Court commitments, the hearing date was subsequently postponed to 12 March 2025.

3    Following the dismissal of the interlocutory application seeking production of additional material based on an alleged waiver, the following email was received by my Chambers:

Dear Associate,

We refer to his Honour’s orders made on 21 February 2025 dismissing the applicant’s interlocutory application.

We confirm that the applicant is intending to appeal his Honour’s decision. The Respondents too have been notified.

Consequently, we are of the position that the current timetable listing the date of 12 March 2025 for the hearing of the applicant’s judicial review application will have to be vacated.

If his Honour requires, we can prepare a short minutes [sic] of orders on the above, and confer their particulars with the Respondents.

Kind regards,

4    Another email was received minutes later, which stated:

Dear Associate,

In clarification of the email below, we are of the position that the current timetable listing the date of 12 March 2025 for the hearing of the applicant’s judicial review application will have to be vacated, pending the outcome of her application for leave to appeal, and if that is successful, the appeal itself.

Kind regards,

5    I directed my Associate to respond to the emails in the following terms:

Dear Practitioners

Attached is a copy of his Honour revised ex tempore reasons for the dismissal of the applicant’s interlocutory application.

I have raised the below emails from Mr Boesel with his Honour who has directed me to respond as follows.

The orders of the Court for preparation of the hearing before his Honour (made on 14 November 2024) have not been vacated and remain extant (subject to the change of the hearing date caused by Full Court commitments notified to the parties on 28 January 2025). The hearing remains listed to commence at 10:15am on 12 March 2025. These orders include order 3, as to the filing of the applicant’s submissions, which is the subject on ongoing default.

Subject to a successful application being made to his Honour in open Court to vacate those orders and adjourn the hearing, it will proceed at the appointed date and time on the basis of material that has been filed.

His Honour does not wish to receive further informal communication as to these matters. If an application to vacate is to be made, an interlocutory application should be filed supported by evidence (which will then be dealt with when it can be accommodated).

Yours faithfully

6    In response, an interlocutory application has been filed, supported by an affidavit of the applicant’s solicitor.

B    CONSIDERATION

7    It is said that there will be a substantial injustice if an adjournment is not granted because “[a]n insistence on the current hearing date and timetable for the filing of submissions renders the application for leave to appeal futile and frustrates the [a]pplicant’s full exercise of her right to seek leave to appeal the interlocutory decision”.

8    I am far from convinced this is the case.

9    In the event that I fell into error as to the issue of waiver and that this caused an injustice at the hearing, the applicant would be entitled to appeal, and to make assurance double sure, I would extend the time for leave to appeal so that it expired at the same time as the cessation of the appeal period following the hearing (although this may not be strictly necessary). If I did not fall into error as to waiver, then the disruption of the hearing date would have been entirely unnecessary in circumstances where there is a high public interest in this matter being resolved in accordance with the overarching purpose reflected in s 37M of the Federal Court of Australia Act 1976 (Cth).

10    I must say, it is a cause of some concern to me that the position taken by the applicant’s solicitor was that Ms Rivas was, in effect, entitled to an adjournment of the final hearing simply because they propose to challenge the interlocutory decision.

11    Balanced against these matters is first, the fact that the Court has not yet listed the application for leave to appeal and, given the pendency of the hearing date, it now seems unlikely that the leave application will be heard prior to the current hearing fixture on 12 March 2025.

12    Secondly, I have been informed for the first time today that the legal representatives appearing on behalf of the applicant are acting on a pro bono basis. Needless to say, given the issues in this case, the Court is grateful for the assistance of those practitioners assisting in the administration of justice in that way and I do not wish to place any undue pressure upon them.

13    Thirdly, the applicant has ignored the orders made by the Court for the preparation of the hearing and, notwithstanding the hearing date is only now days away, I have not had the benefit of the applicant’s submissions in chief, let alone detailed submissions in response to those contentions.

14    Fourthly, there is the desirability that all parties before the Court perceive that they have had their case dealt with fairly.

15    The final matter is that the respondents do not actively oppose the adjournment, indicating that it is essentially a matter for the Court.

16    In these circumstances and, particularly given the lack of any opposition to the adjournment application, it seems to me that I should accede to the applicant’s adjournment application and vacate the hearing date. This will inevitably cause delay, which seems to me to be unsatisfactory, particularly in circumstances where that delay may prove in the end to be unnecessary.

C    CONCLUSION AND ORDERS

17    Accordingly, I will make orders that the current hearing on 12 March 2025 be vacated, and that orders 3, 4, and 5 of Orders dated 14 November 2024 (which provide a timetable for the filing of submissions for the hearing) be vacated.

18    I will also direct the parties to contact my Chambers immediately on the earlier of either the adverse outcome of the applicant’s application for leave to appeal, or the outcome of the substantive appeal, from the interlocutory decision made on 21 February 2025.

[THE PARTIES THEN ADDRESSED ON COSTS]

19    An order is also sought that costs be reserved. I think that is an appropriate order, in all the circumstances, because if the adjournment does prove to have been unnecessary, it may be appropriate that costs thrown away by the adjournment be paid by the applicant.

Associate:

Dated: 10 March 2025