Federal Court of Australia

Chawk v Callan [2025] FCA 290

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time dated 9 January 2025 be dismissed.

2.    The applicant pay the respondent’s costs of, and incidental to, this proceeding.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction and background

1    Before me is an application dated 9 January 2025 (the Application), accompanied by a draft Notice of Appeal (the Proposed Appeal), in which the applicant, Mr Chawk, seeks the following orders:

1.    Pursuant to rule 39.03 of the Federal Court Rules 2011 (Rules), leave to claim in this new proceeding the same relief as claimed in Federal Court of Australia proceeding VID682/2023, which was dismissed without adjudication on the merits by Rofe J on 3 April 2024 after the appellant did not pay security for costs as ordered.

2.    An extension of time under rule 36.05 to file a notice of appeal.

2    By filing the Application, Mr Chawk seeks to appeal the entire judgment of the primary judge in Callan v Chawk [2023] FCA 898 (the Primary Judgment) and in Callan v Chawk (Costs) [2023] FCA 1198 (the Costs Judgment), delivered respectively on 3 August 2023 and 10 October 2023. In both judgments, the primary judge found in favour of the respondent, Dr Callan.

3    Mr Chawk initially sought to challenge the Primary Judgment, in the ordinary way, by filing a Notice of Appeal dated 30 August 2023, commencing the appeal proceeding, VID 682 of 2023 (the First Appeal).

4    In the First Appeal, Dr Callan filed an interlocutory application dated 30 October 2023, seeking security for costs (Security Application). Subsequently, on 10 January 2024, Mr Chawk filed his own interlocutory application pursuant to r 36.08(2) of the Federal Court Rules 2011 (Cth) to stay the orders of the primary judge arising from the Primary Judgment and the Costs Judgment, pending the outcome of the appeal (Stay Application). As the relief sought in Mr Chawk’s Security Application fell outside the scope of the Registrar’s powers, the application was escalated to me in my capacity as general duty judge at the time. Given the overlap between the Security Application and the Stay Application — specifically regarding Mr Chawk’s financial position, which was relevant to both — I proceeded to hear the applications concurrently on 15 February 2024.

5    On 16 February 2024, I delivered reasons for my determination, Chawk v Callan [2024] FCA 92 (the Security Judgment), in which I ordered, inter alia, that Mr Chawk provide security for costs in the amount of $50,000 before the appeal could proceed any further. The order required payment within 42 days and included a self-executing provision. Failure to provide security within the time ordered would result in the dismissal of the appeal. Mr Chawk did not pay the security within the time ordered and the First Appeal was dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 36.09(1)(c) of the Rules on 3 April 2024 (the Dismissal Order).

6    Mr Chawk has recently obtained the security amount and now seeks the following orders:

(a)    leave under r 39.03(2)(b) of the Rules to file the Proposed Appeal; and

(b)    an extension of time under r 36.05 to file the Proposed Appeal.

7    Mr Chawk does not seek to set aside the dismissal of the First Appeal, nor an extension of time in which to pay the security ordered.

8    For efficiency, I will not restate the relevant factual background surrounding these matters, as it is assumed that the reader is familiar with the Primary Judgment, Costs Judgment and Security Judgment. Instead, I will proceed directly to an assessment of the Application.

Evidence

9    Mr Chawk relied on his two affidavits of 8 October 2024 (Chawk No. 1) and 9 January 2025 (Chawk No. 2).

10    Dr Callan relied on the affidavit of his solicitor, Ms Bronte Callaghan of Giles George, dated 12 March 2025 (Callaghan).

11    Neither Mr Chawk nor Ms Callaghan was called for cross examination.

Application to commence fresh appeal under r 39.03

12    Rule 39.03 of the Rules provides the following:

39.03    Dismissal of proceedings and stay of further proceedings

(1)    If the Court makes an order dismissing a proceeding or part of a proceeding, the applicant may apply to the Court:

(a)    for an order that the dismissal be without prejudice to any right of the applicant to bring fresh proceedings; or

(b)    for leave to claim the same relief in a new proceeding.

(2)    If:

(a)    a proceeding has been dismissed in whole or in part; and

(b)    the Court has ordered the applicant to pay another party’s (the second party’s) costs;

the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid.

(Emphasis added.)

13    Mr Chawk contends that r 39.03(1)(b) of the Rules permits him to seek leave to institute a fresh appeal in circumstances where the First Appeal was dismissed solely due to non-compliance with procedural orders, rather than on its merits. In support of this argument, he relies on Ferella v Otvosi (2005) 63 NSWLR 523 at [11]–[12] (per Hamilton J), a case dealing with the dismissal of a proceeding in the New South Wales Supreme Court’s original jurisdiction, for the proposition that a clear distinction must be drawn between dismissal on merits and dismissal for non-compliance with the Rules. Mr Chawk maintains that his attempt to renew his appeal does not violate the principle of finality, as the dismissal of the First Appeal occurred at the outset of the proceeding, before any substantive steps were taken.

14    In this regard, Mr Chawk refers to the observations of Flick J in Skinner v Commonwealth of Australia [2012] FCA 1194. Justice Flick’s comments were made in the context where his Honour had rejected an application for an extension of time for compliance with an order and dismissed the proceedings, without prejudice to any right to bring fresh proceedings. The applicant there sought an order pursuant to r 39.03 of the Rules permitting her to file fresh non-appellate proceedings, to which his Honour remarked the following at [44]:

The discretion conferred by r 39.03(1) is not confined by criteria which are expressly stated. It is a discretion, it is considered, which should be exercised by reference primarily to the competing rights of the parties. In circumstances where the dismissal of a proceeding occurs at the outset and in advance of any defence or any other step in the proceeding having been taken, it may be difficult for a respondent to point to any prejudice which would preclude the discretion being exercised in the applicant’s favour. Indeed, it may well be the case that in such circumstances irrevocable prejudice would be occasioned to an applicant if an order were not made permitting him to “bring fresh proceedings”.

15    Mr Chawk submits that he now has the means to pay security for Dr Callan’s costs of the appeal and has undertaken to do so if the Court grants the orders sought in the Application. In Chawk No. 1, Mr Chawk gave evidence that on 24 September 2024, his parents provided him with a loan of $50,000 to pay the security, which he has since deposited into his personal bank account. This loan was in addition to the $140,000 plus default interest that he already owed his father.

16    Mr Chawk is the sole director and shareholder of Zacon Property Group Pty Ltd, a construction company that had not won any work during the period from September 2021 to 15 February 2024, and since then, has been “successful on about only 30% of its tenders”. Other than this very high-level information, there is no evidence as to Mr Chawk’s financial circumstances.

17    Mr Chawk maintains that no prejudice would be suffered by Dr Callan if the Court were to make an order under r 39.03(1)(b). However, he contends that failure to do so would result in irrevocable prejudice to him.

18    In advancing his submissions regarding the nature of the Court’s power, Mr Chawk argues that r 39.03 should be understood in two parts. The first part, sub-r (1), permits the Court to grant leave for an applicant to commence a new proceeding seeking the same relief, despite the dismissal of a previous proceeding. The second part, sub-r (2), provides that if a proceeding has been dismissed in whole or in part and the Court has ordered the applicant to pay another party’s costs, that party may apply for a stay of any further proceedings on the same, or substantially the same, cause of action until the costs have been paid. Mr Chawk contends that these two provisions are designed to operate together.

19    On the other hand, Dr Callan contends that r 39.03(1)(b) should not be construed as permitting leave to be granted to commence a fresh appeal, in circumstances where a previous appeal has been dismissed.

20    While the Federal Court Act and the Rules define “proceeding” to include an appeal, the respondent argues that this definition must be read subject to any contrary intention. In support of this argument, Dr Callan relies on Mark Foys v TVSN (Pacific) Limited [2000] FCA 1417, where Conti J considered a similar (albeit not identical) provision — order 35, r 6 of the former version of the Rules (the Former Rule). His Honour observed at [4] that while the language of the Former Rule referred to “further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief,” it was inapplicable to an appeal, as an appeal does not constitute a separate claim for relief. Rather, the only relief in an appeal is the setting aside of the orders below. Dr Callan submits that the statutory language in r 39.03 is substantially similar and should be interpreted in the same way.

21    Furthermore, Dr Callan submits that even if r 39.03 were to confer power to grant leave for a fresh appeal, he argues that such an order should not be made in this case, as it would cause substantial prejudice against to him. Mr Chawk’s undertaking to pay security for the appeal costs does not, in Dr Callan’s view, mitigate this prejudice.

Consideration

22    In my view, r 39.03 does not apply to enable a person to bring a fresh appeal well out of time, in circumstances where their earlier appeal has been dismissed.

23    Whilst s 4 of the Federal Court Act defines the term “proceeding” as including an appeal, the wording of r 39.03 is not apt for appeals. In relation to the Former Rule, which employed very similar wording, Conti J in Mark Foys observed at [5]–[6] that:

It does not seem to me that this rule could apply in relation to an appeal such as in the circumstances here involved, at least for the following reasons: Firstly it is an inapposite use of language to describe an appeal as a proceeding brought on a cause of action. An appeal constitutes a proceeding to review a decision which is concluded based on a cause of action.

Secondly, the relief sought in a proceeding at first instance relates to a cause of action which may result in an order for an injunction or damages or simply a declaration. Whereas by way of contrast the relief sought in a proceeding in relation to an appeal is the setting aside of a judgment at first instance in which a cause of action has merged. It is, as I have said before, inapposite to speak of an appeal as seeking relief on a cause of action.

24    In my view, Conti J’s reasoning above can aptly be applied to the rule in its current form. Rule 39.03(1)(b) refers to the applicant seeking leave to “claim the same relief” in a new proceeding. The reference to a claim for relief is inapposite to describe the result sought by an appellant: the setting aside of the orders made by the primary judge.

25    Skinner and Ferella, the two authorities upon which Mr Chawk relies, involved dismissals of proceedings in the original jurisdiction of the respective Courts, not appellate proceedings.

26    Rule 39.03 is located in Chapter 5 of the Rules — which deals with judgments, costs and other general provisions — rather than Chapter 4, which covers appeals. This further supports my conclusion that r 39.03 does not apply to a putative appellant seeking to file a fresh appeal well out of time.

27    Moreover, the Court retains a discretion as to whether to make the orders sought. The discretion is not confined by criteria which are expressly stated. In considering whether to exercise the discretion, the Court should have reference primarily to the competing rights of the parties: Skinner at [44] (per Flick J). I discuss relevant discretionary considerations below in the context of the second aspect of the application, the extension of time to file the Proposed Appeal. Even if r 39.03 did apply to allow the filing of fresh appeals, for the reasons discussed in the next section, I would not exercise my discretion to allow Mr Chawk to file a fresh appeal under r 39.03.

Application for extension of time

28    Rule 36.03 stipulates that the appeal must be instituted with 28 days from the date of the decision being appealed, being 31 August 2023 in this case. It is common ground that whilst the First Appeal was instituted within time, the current Application is well outside the prescribed time limit, with a delay of over a year.

29    The Court has a discretion whether to allow an extension of time pursuant to r 36.05. The principles relevant to the exercise of this discretion are well established and were recently summarised by the Full Court in Quach v RU [2024] FCAFC 32 at [24] (per Perry, Meagher and Shariff JJ). While the discretion is not confined by express criteria, there are a range of considerations which may be appropriately taken into account in the exercise of discretion. These include:

    the length of the delay;

    whether the applicant has demonstrated an acceptable explanation for the delay;

    whether the respondent would suffer prejudice if the extension of time were granted; and

    the merits of the substantive appeal, if the extension of time was granted.

30    As to the last of these factors, the Full Court noted at [25] that it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner.

31    In exercising its discretion whether to grant an extension of time to file an appeal, the Court is faced with balancing whether to deprive a litigant of their right of appeal against the interests of the respondent to an appeal in being able to enjoy the “fruits of their litigation”: see generally, Christian v Société Des Produits Nestlé SA [2015] FCA 1341 (per Rares J). More broadly, the Court must also consider the interests of the public and other litigants in the Court in the efficient use of Court resources, and the objective of facilitating the just resolution of disputes “as quickly, inexpensively and efficiently as possible” in accordance with s 37M(1) of the Federal Court Act.

Delay

32    The delay which must be explained is very substantial — the orders sought to be appealed were made 18 months ago — and the Court would therefore require a correspondingly compelling explanation to justify exercising the discretion under r 36.05 in Mr Chawk’s favour.

33    Mr Chawk explains the delay as follows:

(a)    The First Appeal was filed within the prescribed time, however due to his failure to pay security for costs in accordance with my orders of 15 February 2024, the appeal was subsequently dismissed on 3 April 2024.

(b)    He suffered a significant amount of personal stress and distress as a result of health issues suffered by close members of his family, and work-related issues.

(c)    On 24 September 2024, he received a loan from his parents of $50,000 to pay security for Dr Callan’s costs of the appeal.

(d)    On 31 October 2024, he filed an application for an extension of time, but this application was rejected for filing on 11 December 2024 pursuant to r 2.26 of the Rules.

(e)    On 9 January 2025, his application for an extension of time was accepted for filing by the Court.

34    Neither Chawk No. 1 nor Chawk No. 2 adequately explain Mr Chawk’s delay in bringing the Application, in particular the delay prior to his attempt to file an application for an extension of time on 31 October 2024. Notably, the evidence provided is vague about the timing of key events, lacking specific dates and details. A significant obstacle cited for the delay is family health problems.

35    Mr Chawk’s evidence is that his father suffered a heart attack a couple of years ago and that his health has rapidly deteriorated this year. However, he does not specify when these events occurred in relation to the delivery of the primary judge’s reasons or the Security Judgment. Mr Chawk also states that in or around March or April 2024, his uncle suffered a stroke, but again, no exact date is provided. This lack of clarity makes it difficult to establish a clear timeline of events, particularly in connection with the dismissal of the First Appeal on 3 April 2024.

36    Mr Chawk further states that on 7 September 2024, his cousin suffered a heart attack. While this is the only event with a precise date, it must be noted that it occurred well after the dismissal of the First Appeal and therefore has no apparent bearing on the delay in filing the Application.

37    Mr Chawk asserts that these various family health issues caused him significant stress and anxiety. However, it remains unclear how these personal circumstances directly contributed to the delay in filing the Application. The evidence fails to establish a concrete link between these events and Mr Chawk’s delay in obtaining the $50,000 to pay security and bringing the Application.

38    Mr Chawk’s claim that he now has the means to pay the required security such that it would mitigate any prejudice suffered by Dr Callan is, at best, insufficiently supported by evidence. The circumstances surrounding Mr Chawk’s receipt of the “loan” of $50,000 from his parents on 24 September 2024 remain largely unexplained. His evidence does not clarify when this loan was first requested or why it was not obtained earlier, in particular during the 42 days ordered for the payment of security.

39    Given the length of the delay, a clear and compelling explanation is required. The longer the delay, the stronger the justification must be. However, Mr Chawk’s explanation falls well short of meeting that standard and does not present a persuasive reason for the extended delay.

Merits of appeal

40    The question of the merits of the appeal should be approached in a reasonably impressionistic manner: Quach at [25].

41    Aside from challenging the three imputations found by the primary judge, the Proposed Appeal adds the following new ground, which was not raised in the First Appeal:

Having found that there was not a substantial publication of the Review (as defined in the primary judge’s reasons) ([2023] FCA 898 at [88] and [91]), the learned primary judge erred in failing to dismiss the claim on the basis that the threshold for seriousness required had not been met.

42    The publication of the Review (Annexure A to the Primary Judgment) predated the introduction of the statutory serious harm threshold contained in s 10A of the Defamation Act 2005 (NSW) which was amended by the Defamation Amendment Act 2020 (NSW) and came into effect from 1 July 2021.

43    By his first ground of appeal, Mr Chawk seeks to argue for the existence of a common law serious harm threshold in circumstances where:

(a)    the trial judge found that publication was not substantial (see Primary Judgment at [88] and [91]); and

(b)    it was contended that serious harm was not established.

44    Mr Chawk relies on the decision of Tugendhat J in the English case of Thornton v Telegraph Media Group Pty Ltd [2011] 1 WLR 1985 at [90]–[96], as authority for the proposition that a matter is not to be regarded as “defamatory” unless it has a substantial adverse effect on a person’s reputation or has a tendency to do so.

45    It is questionable whether a serious harm threshold exists at common law in Australia. The strongest endorsement of Thornton in Australia was by McCallum J, as her Honour then was, in Kostov v Nationwide News Pty Ltd (2018) 97 NSWLR 1073 at [31]–[42]. Her Honour noted that the existence of such a requirement had not previously been acknowledged in Australia (at [31]); however, her Honour was persuaded that the definition of “defamatory” adopted in Australia comprehended such a threshold.

46    Kostov went on appeal in Kostov v Nationwide News Pty Ltd [2019] NSWCA 84. The New South Wales Court of Appeal noted that the case was the first time the Thornton principle had been applied in Australia, stating at [11] (per Bell P and Leeming JA) that “[i]f the proceedings had been summarily dismissed on the basis of the Thornton objective seriousness test, then the application for leave would present a question of principle, perhaps sufficient to warrant a grant of leave”. As the proceedings were summarily dismissed on another basis, Ms Kostov’s application for leave to appeal was ultimately dismissed.

47    However, Dr Callan contends that Mr Chawk seeks to raise a point of principle not raised at trial. Mr Chawk cannot now seek to advance the common law “threshold of seriousness” argument on appeal, as that issue was not raised before the primary judge and was, in fact, expressly disavowed by Mr Chawk’s previous counsel during closing submissions. Dr Callan’s counsel drew the Court’s attention to two transcript extracts, annexed to Chawk No. 1, from Mr Chawk’s closing submissions at trial. These exchanges, which took place between the primary judge and Mr Chawk’s then counsel, Mr Catlin, occurred on the final day of trial and are set out below.

48    The first of these exchanges is as follows:

MR CATLIN: Yes. Someone at home on a computer gives five seconds worth of attention to it and then wanders off and then looks at it again. So there’s a relationship between Dr Callan’s knowledge of how limited the spread is. So in terms of his hurt, I ask the court to find that he’s not really hurt, because he knows it hasn’t gone far.

HIS HONOUR: Well, do you ask me to go as far as to say there is no hurt?

MR CATLIN: Well, there is a - - -

HIS HONOUR: Or non-compensable hurt.

MR CATLIN: Well - - -

HIS HONOUR: It’s de minimis. It should be – it’s not worthy of any reflection in any award of damages if I otherwise was against you on the defences.

MR CATLIN: There’s a - - -

HIS HONOUR: Or do you say it goes to the quantum? You would say this would be at the lower end given the limited publication.

MR CATLIN: Definitely that, but you could go further and say it doesn’t meet the serious harm threshold.

HIS HONOUR: You ask me to find that.

MR CATLIN: Yes. Yes, my learned friend is correct. The law, as at the date of this publication, didn’t provide the serious harm threshold. I withdraw that. But in any event - - -

(Emphasis added.)

49     The second exchange is as follows:

HIS HONOUR: Well, first of all, you say the meanings weren’t conveyed in any event, but if the meanings were conveyed, I think you accept that they were defamatory which then moves to the question of qualified privilege and the issue of honest mistake.

MR CATLIN: Yes, yes. And so there is authority that with opinion – honest opinion – you look at the whole matter…

(Emphasis added.)

50    The transcript bears out Dr Callan’s contentions. During closing submissions, Mr Chawk’s counsel at the time disavowed the existence of an applicable “serious harm threshold” as well as conceding that if conveyed, the imputations pleaded were defamatory. The primary judge recorded this concession at [117] of the Primary Judgment. The acknowledgment that the pleaded imputations were defamatory is entirely inconsistent with maintaining any argument on appeal as to meeting a common law threshold of seriousness based on Thornton.

51    The three challenges to the imputations found by the primary judge are challenges to findings of fact. At [15] of the Primary Judgment, his Honour noted that he approached the evidence given by Mr Chawk with “great caution”, observing that where his evidence conflicted with that of Dr Callan, he had given more weight to the evidence of Dr Callan.

52    In a majority decision of the High Court in Fox v Percy (2003) 214 CLR 118, it is clearly articulated that an appellate court will only intervene in a primary judge’s findings of fact where those findings are shown to be contrary to incontrovertible facts or “glaringly improbable”: at [29] (per Gleeson, Gummow and Kirby JJ), citing Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 at 57 (per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ). I do not consider that the factual challenges have reasonable prospects of success.

53    Given the concession made in closing, Mr Chawk’s attempt to rely on the Thornton principle on appeal is misplaced, and his attempt to raise on appeal an issue that was not argued at trial should be rejected. The appeal lacks sufficient merit to justify the grant of leave.

Prejudice?

54    The extent of Mr Chawk’s current outstanding liabilities to Dr Callan are summarised in the following table, extracted from Callaghan at [6]:

55    As noted above, Mr Chawk’s attempt to stay the orders in the Primary Judgment and the Costs Judgment was unsuccessful. Mr Chawk’s failure to pay the costs and damages ordered led to Dr Callan issuing a Bankruptcy Notice BN273299 dated 8 October 2024, in the amount of $315,181.15.

56    There is, on the evidence, no realistic prospect that if Dr Callan is forced to respond to this renewed appeal, he will, if successful, be able to recover anything more than the amount paid into Court for security for costs.

57    In light of these factors, Dr Callan’s financial prejudice is clear. There is also the effect on him personally of the return of a matter which — following Mr Chawk’s failure to pay security and the consequent dismissal of the First Appeal — Dr Callan may well have considered the matter over and put behind him.

58    Mr Chawk submits that the prejudice he faces is self-evident. The Bankruptcy Notice arising from the challenged judgments has already been served upon him and bankruptcy is likely to eventuate. Being rendered bankrupt would have adverse ramifications for his already precarious financial circumstances and his reputation: Kairouz v Jasper Nominees Limited [2024] VSCA 68 at [25]–[28] (per Walker JA, Kennedy JA agreeing). On Mr Chawk’s evidence, there is little immediate prospect of his financial circumstances turning around.

59    In undertaking the weighing exercise, the Court must consider that Mr Chawk has yet to discharge his liabilities for the judgment sum, trial costs, or the costs of the Security Application and Stay Application, nor has he addressed the interest accruing on these amounts. Furthermore, his apparent impecuniosity raises concerns that any further appeal proceedings may be hindered by financial constraints, potentially leading to delays and inefficiencies that run counter to the principles of effective case management.

60    The effect of the extension of time to file an appeal sought by Mr Chawk is that Dr Callan would be forced to incur further costs resisting the appeal, in circumstances where his accrued rights to be paid damages and costs — arising from judgments of this Court for which there is a prima facie assumption that it is correct (see Flight Centre Limited v Australian Competition and Consumer Commission [2014] FCA 658 at [9(b)] (per Rangiah J)) — remain unsatisfied; and in circumstances where it is highly unlikely that Dr Callan would be able to recover any of those costs if the appeal is dismissed.

Disposition on extension of time

61    Any benefit to Mr Chawk in filing the Proposed Appeal is heavily outweighed by the following culminating factors:

    the lack of a sufficient explanation as to his delay in bringing the Application;

    the lack of detail as to when he first sought the loan from his parents;

    the lack of merit in the grounds of the proposed appeal; and

    the substantial financial and personal prejudice to Dr Callan entailed in defending a new appeal.

62    In those circumstances, I would not exercise my discretion to allow an extension of time to file the Proposed Appeal. For the same reasons I would not exercise my discretion to allow Mr Chawk to bring a fresh appeal under r 39.03, if that were possible under that rule.

Reinstatement of First Appeal?

63    In Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 (per North, Mansfield and Besanko JJ), the Full Court accepted at [28] that it has power to set aside a Notice of Discontinuance of an appeal. Pursuant to r 36.73(2) a Notice of Discontinuance has the effect of an order of the Court dismissing the appellant’s appeal.

64    In Chen v Monash University (2016) FCR 424 (per Barker, Davies and Markovic JJ), the Full Court held at [41]–[48] that the Court has the power to reinstate an appeal after it has been discontinued and dismissed where it is necessary to prevent an abuse of process of the Court or to protect the integrity of those processes. That power is discretionary in nature, so that when enlivened, the prospects of success of the proposed appeal may be taken into account.

65    In seeking to start a new appeal pursuant to r 39.03, Mr Chawk seeks to circumvent the very high bar required for an applicant seeking the reinstatement of a dismissed appeal. Rule 39.03 is not intended to provide an alternative pathway for reopening litigation that has already been concluded. Allowing such an approach would undermine the finality of judicial decisions and create uncertainty in the appeals process. Moreover, Mr Chawk has not demonstrated any exceptional circumstances that would justify the Court here departing from the established principles governing reinstatement.

66    Mr Chawk did not seek to set aside the Dismissal Order and reinstate the First Appeal, and neither party made submissions as to whether the Court had the power to reinstate the First Appeal given Mr Chawk’s changed circumstances, and if so, whether it should exercise its discretion to reinstate that appeal.

67    For the reasons articulated above, including the lack of merit of the appeal, I do not consider that it would be appropriate for the Court to reinstate the First Appeal in the circumstances of this case.

Conclusion

68    Accordingly, the Application should be dismissed with costs.

69    Finally, I wish to address a request of counsel for Dr Callan. Counsel requested that I make an order requiring Mr Chawk to pay $50,000 into the Court to satisfy Dr Callan’s judgment in these proceedings. Despite the dismissal of this Application, such an order would not be an appropriate form of redress in this forum. Accordingly, no order to this effect will be made.

Associate:

Dated:    31 March 2025