Federal Court of Australia

Scott v Scott (No 2) [2026] FCA 103

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first, second and third respondents’ costs on an indemnity basis with the costs to be assessed by a Registrar on a lump sum basis.

3.    The costs as assessed are to be paid forthwith.

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

REASONS FOR JUDGMENT (ex tempore)

O’SULLIVAN J:

1    On 29 July 2025, Bampton J of the Supreme Court of South Australia made a number of orders in relation to the estate of Alice Barbara Scott. Those orders included passing over Dr Susan Jane Scott, one of the deceased’s daughters and the applicant in this matter, as executor of that estate and issuing letters of administration with the will of the deceased dated 9 December 2005 annexed, to independent solicitor Mark Peter Jappe.

2    The Court also ordered that Dr Scott pay the costs of the Supreme Court proceedings on an indemnity basis, noting there was no reasonable basis to contest the application to have the applicant passed over as executor.

3    On 12 August 2025, the applicant filed a notice of appeal in this Court from the whole of the judgment and orders of Bampton J made on 29 July 2025.

4    On 12 August 2025, Dr Scott also filed an interlocutory application in this Court in which she sought an order staying execution of the orders of Bampton J until the appeal in this Court is decided.

5    With the consent of the parties, the primary judge determined the interlocutory application on the papers. On 25 November 2025, the primary judge dismissed Dr Scott’s interlocutory application: Scott v Scott [2025] FCA 1449.

6    In dismissing Dr Scott’s application for a stay, the primary judge considered whether Dr Scott’s appeal to the Full Court of the Federal Court of Australia was competent. His Honour proceeded, without deciding, on the basis that the Full Court of this Court has jurisdiction to hear an appeal against Bampton J’s orders.

7    It seems that Bampton J’s orders have now been carried into effect save for the recovery of costs.

8    As part of his Honour’s reasons, the primary judge also considered that Bampton J’s orders constituted an interlocutory judgment requiring leave.

9    Addressing the principles relevant to the grant of a stay of orders pending appeal, the primary judge identified the relevant principles at paragraph 38 of his Honour’s judgment being:

(a)    it is not necessary to show special or exceptional circumstances in order to obtain a stay of orders that are the subject of an appeal, citing Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66 and Barker v The Commonwealth Bank of Australia [2012] FCA 1076 at paragraph 14; and,

(b)    a stay will not be granted in the absence of arguable grounds of appeal.

10    On 18 December 2025, Dr Scott filed a further interlocutory application pursuant to r 39.05 of the Federal Court Rules 2011 (Cth) seeking an order that the primary judge’s orders made 25 November 2025, refusing a stay, be set aside.

11    The application was referred to me as duty judge and I listed the matter for hearing today.

12    Late on Friday 30 January 2026, Dr Scott attempted to file an interlocutory application seeking that I recuse myself on the basis of actual or apprehended bias. The application was not accepted for filing.

13    Dr Scott also sought to file an affidavit on 30 January 2026 in the last paragraph of which she deposes that she has multiple submissions due on the appeal – I assume from Bampton J’s order – and wished to be excused attendance at Court. I take that to be today. Dr Scott continues:

I will submit an appeal notice of the dismissal or stay of proceedings.

14    When the matter was called on today, there was no appearance by Dr Scott.

15    The last paragraph of Dr Scott’s affidavit indicates to me that rather than applying to have the primary judge’s orders set aside pursuant to FCR 39.05, Dr Scott now intends to appeal against the primary judge’s orders.

16    I do not intend to put the parties to the extra expense of attending on yet another occasion in circumstances where Dr Scott has indicated that she is not going to attend on the application.

17    There is nothing in the materials that have been put forward by Dr Scott that show anything different to that which was before the primary judge who produced a detailed and comprehensive judgment. Although I am not making any decision as to the merits of the application, on the application of Mr Heinrich, who appears for the first respondent, Helen Elizabeth Scott, by virtue of the non-attendance of Dr Scott, the application is dismissed.

18    The respondents seek their costs. I consider that is appropriate and there will be an order that the applicant is to pay the first, second and third respondents’ costs on an indemnity basis, with the costs to be assessed by a Registrar on a lump sum basis.

19    There will also be an order that costs as assessed are to be paid forthwith.

Associate:

Dated:    16 February 2026