Federal Court of Australia

Lighthouse Building Permits Pty Ltd v Site Inspections Pty Ltd [2026] FCA 408

ORDERS

THE COURT ORDERS THAT:

1.    The third and fourth respondents’ interlocutory application dated 1 April 2026 be dismissed.

2.    The third and fourth respondents’ interlocutory application dated 11 March 2026 be dismissed.

3.    The applicants have leave to file and serve submissions of no more than 2 pages in length and, if required, any affidavit material directed to the question of costs, by no later than 4:00pm on Tuesday, 14 April 2026.

4.    The third and fourth respondents have leave to file and serve submissions in response of no more than 2 pages in length and, if required, any affidavit material directed to the question of costs, by no later than 4:00pm on Tuesday, 21 April 2026.

5.    The question of costs of and pertaining to the interlocutory applications referred to in orders 1 and 2 be determined on the written submissions without the need for an oral hearing

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an application dated 11 March 2026, the third and fourth respondents (Mr and Mrs Martens) move under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) for a review of a decision of a registrar. The decision in question concerned two interlocutory applications and a notice to produce that Mr and Mrs Martens had filed.

2    The first interlocutory application was accepted for filing on 8 January 2026. By it, Mr and Mrs Martens sought relief in the nature of summary judgment or, alternatively, the striking out of parts of the applicants’ statement of claim. The second interlocutory application was accepted for filing on 21 January 2026 and was less orthodox in form. By it, Mr and Mrs Martens sought “leave to file and rely upon” certain documentary material, to the particulars of which it will be necessary later to return.

3    The notice to produce is dated 11 February 2026. By it, Mr and Mrs Martens seek to have the applicants produce various documents. Again, I shall return to the particulars of that document momentarily.

4    The two interlocutory applications were referred for determination by Registrar Legge pursuant to s 35A(1) of the FCA Act, together with r 3.01 and Sch 2 of the Federal Court Rules 2011 (Cth). As the disappointed parties, Mr and Mrs Martens seek now to invoke their right to have the registrar’s decision reviewed judicially. A review of that nature proceeds as a rehearing de novo. That being so, it is unnecessary that I should rehearse the ex tempore reasons that were given for the course that the registrar was minded to chart. It suffices instead to note that both interlocutory applications were dismissed, that the notice to produce was set aside, that orders were made to remove from the court’s file documents that were the subject of the second interlocutory application and that Mr and Mrs Martens were ordered to pay the applicants’ costs on an indemnity basis. Orders to those effects were made on 23 February 2026.

5    Mr and Mrs Martens now seek to have all of those orders set aside; and press for relief in the forms in which the registrar was not inclined to indulge. That application was the subject of a hearing that took place on Wednesday, 8 April 2026, at the conclusion of which it was dismissed on the undertaking that written reasons would follow. Those reasons are as follows.

6    Before addressing the substance of the review application, I should mention a further interlocutory application that Mr and Mrs Martens filed on 1 April 2026. By it, Mr and Mrs Martens sought to have the hearing scheduled for 8 April 2026 adjourned on account of their asserted ill health. Some context is warranted. Shortly after Registrar Legge determined the matters that were before her, the matter was scheduled for mediation to take place on 30 March 2026. By their application for review, Mr and Mrs Martens made clear (and later confirmed in correspondence to the court) that they did not wish to attend a mediation whilst that application was pending. The court indulged the postponement of the mediation on the proviso that, taking account of concerns expressed by the other parties, the application for review be heard expeditiously. On 20 March 2026, it was listed for hearing, and on 24 March 2026, the parties were informed that the mediation had been rescheduled to 11 May 2026.

7    The 1 April 2026 application was supported by an affidavit, attached to which were two medical certificates: the first, apparently signed by Dr Rashid Hameed, noted summarily that Mr Martens would be “unfit to continue his usual employment” between 31 March and 14 April 2026; and the second, apparently signed by Dr Noshine Irrum, noted no less summarily that Mrs Martens would be “unfit to continue her usual employment/meetings” between 2 April and 16 April 2026.

8    The parties were informed that the court would not unilaterally adjourn the review application; but would instead hear and determine Mr and Mrs Martens’ adjournment application at the commencement of the hearing on Wednesday, 8 April 2026. On Saturday, 4 April 2026, Mr Martens (on his own behalf and that of his wife) forwarded further email correspondence to my chambers, confirming that neither would attend the hearing scheduled for Wednesday, 8 April 2026. On Tuesday, 7 April 2026, the court received from Mr and Mrs Martens written submissions dated Saturday, 4 April 2026 concerning their need for an adjournment. Later that same day, further (and lengthier) written submissions were received, which (amongst other things) went to how the court might determine the review in the event that no adjournment was granted.

9    True to their word, neither of Mr and Mrs Martens appeared at the hearing on Wednesday, 8 April 2026. Although noting the content of the written submissions received on 7 April 2026, I was not disposed to grant their adjournment application. The medical certificates upon which they relied offered no firm foundation for that course (nor, indeed, any helpful information of any kind). It was not clear why or how it was that Mr Martens was able to correspond as he did with my chambers and prepare the written submissions that he and/or his wife prepared, at the same time as they maintained an asserted inability to prosecute their own application. In circumstances where the orderly progression of the matter had already been regrettably retarded (in the sense that the scheduled mediation was postponed), I considered that there was insufficient call for further delay. Mr and Mrs Martens having opted not to attend the hearing, I did not consider that there was cause to entertain any of the related relief for which, by the Adjournment Application, they moved.

10    I proceeded with the hearing on Wednesday, 8 April 2026 in Mr and Mrs Martens’ absence. To that end, I had regard to the following documents (many of which were relied upon before Registrar Legge), namely:

(1)    Mr and Mrs Martens’ interlocutory application of (or accepted for filing on) 8 January 2026 (by which was sought orders in the nature of summary judgment and related or equivalent relief);

(2)    an affidavit (or what purported to be an affidavit) affirmed by each of Mr and Mrs Martens on 22 December 2025 in support of that application;

(3)    Mr and Mrs Martens’ interlocutory application of 20 January 2026, by which they sought leave to file and rely upon certain evidential material (a copy of which was accessible to me notwithstanding that the learned registrar ordered that it be removed from the court’s file);

(4)    an affidavit (or what purported to be an affidavit) affirmed by each of Mr and Mrs Martens on 20 January 2026 apparently in support of their interlocutory application of that date (a copy of which was similarly accessible despite being the subject of equivalent orders);

(5)    Mr and Mrs Martens’ notice to produce dated 11 February 2026;

(6)    written submissions dated 12 February 2026, upon which Mr and Mrs Martens relied in prosecuting before Registrar Legge their interlocutory application of 8 January 2026;

(7)    written submissions dated 18 February 2026, upon which the applicants relied in resisting before Registrar Legge the interlocutory application dated 8 January 2026;

(8)    an affidavit (or what purported to be an affidavit) affirmed by each of Mr and Mrs Martens on 20 February 2026 apparently in support of their notice to produce of 11 February 2026;

(9)    written submissions dated 20 February 2026, upon which Mr and Mrs Martens relied in reply to those of the applicants dated 18 February 2026;

(10)    the orders that Registrar Legge made on 23 February 2026 (being the orders in respect of which Mr and Mrs Martens now seek a review under s 35A of the FCA Act

(11)    Mr and Mrs Martens’ interlocutory application of 11 March 2026 (by which that review was sought—and to which I shall refer, hereafter, as the “Review Application”);

(12)    Mr and Mrs Martens’ interlocutory application of 1 April 2026, by which they sought (amongst other things) to have the hearing of their Review Application adjourned on account of asserted ill health (the “Adjournment Application”);

(13)    an affidavit affirmed by Mr Martens on 1 April 2026 in support of the Adjournment Application;

(14)    written submissions of Saturday, 4 April 2026, upon which Mr and Mrs Martens relied in support of the Adjournment Application; and

(15)    written submissions of Tuesday, 7 April 2026, upon which Mr and Mrs Martens relied both in support of the Adjournment Application and the Review Application.

11    Additionally to those materials, the court had before it two further affidavits affirmed by the Martens: one dated 11 March 2026 and another dated 7 April 2026. Save to appreciate that neither bore relevantly upon either of the Review Application or the Adjournment Application, no regard was had to them.

12    I turn, then, to consider each of the applications that were the subject of the Review Application.

13    The first is Mr and Mrs Martens’ application of 8 January 2026 for relief principally in the form of summary judgment or the striking out of the applicants’ statement of claim. The principles that regulate applications of those kinds are notorious and not obviously in contest. Mr and Mrs Martens’ contentions turn principally upon the extent to which the matters that are alleged against them are capable of affording the applicants some entitlement to relief.

14    Something ought to be said about the nature of the substantive application. The applicants allege that they were defamed by a publication made by the first and second respondents. That publication featured statements that were made (or are said to have been made) by Mr and Mrs Martens. It is alleged that Mr and Mrs Martens made them with knowledge that they would be published, such that they are similarly (or might similarly be) liable in tort for defamation in the same way as the first and second respondents might be.

15    Mr and Mrs Martens complain that the current statement of claim does not disclose a cause of action against them, principally because the statement of claim does not allege, “…any material facts…showing any act of participation by them in publication in the sense required by law”. That is not so. The applicants’ statement of claim posits that Mr and Mrs Martens “published a video making numerous allegations concerning the Applicants”, the content of which is said to have been relevantly defamatory. By way of particulars to that allegation, it posits that Mr and Mrs Martens “…conduced to the publication” of that video, including by encouraging the first and second respondents to produce it, by providing information so that they might do so and by agreeing to be interviewed in order that they might convey what are alleged to be the same (or equivalent) imputations against the applicants.

16    Additionally, the pleading asserts that it was the natural and probable consequence of Mr and Mrs Martens’ participation in the making of the video that it would be “widely published”; and that, following its publication, Mr and Mrs Martens “…adopted and/or endorsed the publication…by posting links to it…” and engaging in other identified conduct.

17    The statement of claim also makes equivalent assertions in respect of a second “shorter” video.

18    Whatever might be said of it, I am satisfied that the applicants’ statement of claim reflects the existence of an arguable cause of action as against Mr and Mrs Martens. So to observe is not to accept or suggest that it will succeed. That is not a question that presently arises. At issue presently is whether the matters that are asserted are such that the applicants have the requisite prospect of success at trial. That will turn upon the court’s resolution of questions of mixed fact and law, about which it is unnecessary now to speculate. It suffices to note that, on the present state of the law, what is alleged in respect of Mr and Mrs Martens is capable of giving rise to a cause of action in tort.

19    It follows that there is no moment to entertain an application for summary judgment, nor for the striking out of parts of the pleading or the removal of Mr and Mrs Martens as respondents. The interlocutory application accepted for filing on 8 January 2026 should be dismissed and, respectfully, the registrar was correct to dismiss it.

20    I turn, next, to Mr and Mrs Martens’ application for leave to “file and rely upon” evidence in various forms. It is unclear why that application was made or what might be achieved by it. At present, no orders have been made concerning the filing and service of evidence ahead of a trial in the substantive matter. On its face, the material in respect of which leave was sought was gratuitously prejudicial. So to observe is not to foreclose upon its being admitted if and when there might be occasion to do so; but that occasion is not now. The learned registrar was correct to dismiss the interlocutory application of 20 January 2026 and order that it and the affidavit sworn in support of it be removed from the court’s file.

21    I turn, next, to Mr and Mrs Martens’ notice to produce dated 11 February 2026. A notice to produce is available to compel the production of documents that are referred to in other court processes (such as a pleading or an affidavit). Mr and Mrs Martens’ notice, by contrast, appears to be directed to documents at large. It is, perhaps, better described as an application for discovery, which the court can entertain at the appropriate time should it be necessary to do so. There is no question that the notice should have been (and should remain) set aside and, respectfully, the registrar was correct to favour that conclusion.

22    The final issue for the court’s consideration concerns costs. The registrar was minded to order that Mr and Mrs Martens pay the applicants’ costs of and pertaining to their various applications; and to do so on an indemnity basis. There can be no question, with respect, that she was correct to make an order for costs against Mr and Mrs Martens. Whether it was appropriate to make an order on an indemnity basis turns upon the circumstances in which Mr and Mrs Martens came to press the ill-advised applications that they made.

23    Those circumstances are the subject of exploration in the affidavit sworn by the applicants’ solicitor, Mr Dale Brown, on 18 February 2026. Of significance are the following matters: first, that Mr and Mrs Martens’ application for summary judgment (and equivalent relief) was made without prior correspondence with the applicants; second, that the applicants wrote to Mr and Mrs Martens after the interlocutory application of 8 January 2026 was filed and, amongst other things, explained to them how it was that the matters pleaded against them were competent to reflect an actionable cause; third, the interlocutory application of 20 January 2026 and the affidavit filed in support of it were also not the subject of prior discussion with the applicants, nor did Mr and Mrs Martens make copies of those documents available to them or their solicitors (including after being requested to); fourth, the applicants wrote to Mr and Mrs Martens on 29 January 2026 protesting their insistence upon filing documents without then serving them, and putting Mr and Mrs Martens on notice that their conduct was such as might warrant an order for indemnity costs; fifth, the applicants wrote to Mr and Mrs Martens on 13 February 2026 about their notice to produce and explained (amongst other things) why it was obviously vulnerable to being set aside; and sixth, the applicants wrote to Mr and Mrs Martens on 17 February 2026, noting that, despite request, they had not cited any authority supportive of their application for summary judgment (or related relief) and reserving their right to apply for a special costs order.

24    The circumstances in which a court might make an order for indemnity costs are also notorious. For present purposes, it suffices to observe that a court might be minded to do so in circumstances involving the dismissal of applications that, for want of any reasonable prospect of succeeding, ought never to have been pressed. I am satisfied that each of the processes that Mr and Mrs Martens pursued falls into that category. Each was attended by considerable (indeed, misplaced) ambition, of which the applicants fairly put Mr and Mrs Martens on notice by prior correspondence. Their dismissal was inevitable. Mr and Mrs Martens cannot be shielded from the consequences of their actions merely on account of their self-representation. An order requiring that they pay the applicants’ costs of and pertaining to those processes on an indemnity basis was (and remains) appropriate.

25    The only remaining issue to be determined is that of costs pertaining to the Adjournment Application and the Review Application. At the conclusion of the hearing on Wednesday, 8 April 2026, counsel for the applicants indicated that costs were again sought on an indemnity basis. That not being a matter upon which Mr and Mrs Martens had prior notice, I resolved instead to permit the parties to make short submissions in writing (supported by affidavit material, to the extent that that might be necessary) on the question of costs and to reserve my consideration of that question until after (or, perhaps, if) they are received.

26    I note that the matter is now scheduled to proceed to mediation in early May 2026. That is a sensible course with which, one hopes, all parties will energetically engage, ideally without the distraction of unhelpful interlocutory skirmishing.

Associate:

Dated:    9 April 2026

SCHEDULE OF PARTIES