Federal Court of Australia

Patial v Kailash Lawyers Pty Ltd (No 2) [2026] FCA 597

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J:

1    On 11 May 2026, I made an order dismissing this appeal. These are my reasons for doing so.

2    On 11 March 2026, I made orders setting the appeal down for hearing on 11 May 2026. Those orders also set out a timetable for the filing of submissions and the appeal book. The appellant was present in Court when those orders were pronounced and a copy of the orders as entered was sent to each of the parties.

3    The appellant was required to file his written submissions by 9 April 2026. He did not do so.

4    The appellant was also required to file appeal books by 28 April 2026. He did not do so.

5    On 4 May 2026 at 7:45pm, the appellant sent an email to my Associate and others, including the solicitor for the respondent. In that email, the appellant stated:

I write in relation to the above proceedings, currently listed for hearing on 11 May 2026.

I respectfully seek clarification on several procedural matters in advance of the hearing.

…

2.    Status of the Appeal

I have recently become aware of communications involving the bankruptcy trustee suggesting that the appeal is “dismissed” prior to the listed hearing date.

As I have not received any formal order or notification from the Court to that effect, I respectfully seek confirmation of the current status of the appeal and whether the matter remains listed for hearing on 11 May 2026.

3.    Further Directions

Given the proximity of the hearing, I would be grateful for any directions the Court considers appropriate in relation to:

a.    finalisation of the Appeal Book.

I remain committed to complying fully with the Court’s directions and procedures.

Please let me know if any further information is required.

(bold emphasis in original; underline emphasis added)

6    On 5 May 2026 at 8:36am, my Associate notified the appellant and the solicitor for the respondent that the proceeding had been listed for case management at 9:00am on 6 May 2026.

7    On 6 May 2026, the appellant did not appear at the case management hearing. At that hearing, counsel for the respondent indicated that in the interests of maintaining the hearing date of 11 April 2026, he had prepared appeal books. I made the following orders (which were sent to each of the parties at 9:46am that day):

THE COURT ORDERS THAT:

1.    By 5 pm today 6 May 2026, the respondent is to:

a)    file and serve the appeal books that the respondent has prepared; and

b)    file the written submissions that it has previously served on the appellant.

2.    By 4 pm tomorrow 7 May 2026, the appellant is to file and serve:

a)    his written submissions on the appeal of no more than 10 pages; and

b)    a bundle of any documents that are referred to in his written submissions and which do not appear in the appeal books that the respondent has prepared.

3.    The hearing of the appeal at 10:15 am on 11 May 2026 is confirmed.

4.    The costs of the case management hearing today be reserved.

THE COURT NOTES THAT:

1.    The appellant did not appear at the case management hearing today.

2.    The appellant was previously ordered to file and serve his written submissions on the appeal by 9 April 2026.

(bold emphasis in original)

8    On 11 May 2026 at 10:16am, the appeal was called on for hearing. The appellant did not appear. After the hearing was adjourned until 10:30am at the suggestion of counsel for the respondent against the possibility that the appellant was running late, the hearing resumed and counsel for the respondent sought an order pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) for the dismissal of the appeal.

9    The pre-conditions to the exercise of the discretion conferred by r 36.75(1)(a)(i) were plainly met, as the appellant was absent when the appeal was called on for hearing and the respondent made an application for the dismissal of the appeal. The discretion was exercised so as to make the order sought by the respondent in circumstances where:

(1)    the appellant had failed to file written submissions;

(2)    the appellant was plainly on notice that the appeal was listed for hearing on 11 May 2026. So much is clear from the 11 March 2026 orders and the appellant’s 4 May 2026 email. It was also confirmed in the 6 May 2026 orders; and

(3)    despite this notice the appellant failed to appear not only at the hearing but also at the case management hearing on 6 May 2026, which hearing was convened following the appellant’s 4 May 2026 request. Nor did the appellant notify the Court or the respondent that he did not propose to appear.

Associate:

Dated:    13 May 2026