Federal Court of Australia

Meshram v Bing Lee Electrics Pty Ltd (No 2) [2026] FCA 737

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.41(1)(e)(i) and (iii) of the Federal Court Rules 2011 (Cth), the interlocutory applications to dismiss the proceedings, lodged for filing on 2 February 2026 and 10 February 2026, be dealt with without an oral hearing.

2.    By 4.00pm on 27 July 2026, the appellant in NSD 1105 of 2023, NSD 472 of 2024 and NSD 918 of 2024, must either:

(a)    provide a report from a registered psychiatrist or psychologist assessing her legal capacity to participate in, and give instructions for the purposes of, these appeals; or

(b)    file and serve:

(i)    an application for the appointment of a litigation representative of the appellant’s choice, consistently with rr 9.62 and 9.63 of the Rules, who consents to being appointed to act on her behalf; and

(ii)    a supporting affidavit in accordance with r 9.63(3) of the Rules.

3.    Any report provided in accordance with Order 2(a) is to be provided to the Court Registry marked to the attention of the chambers of Justice Stellios and is to address the appellant’s capacity to:

(a)    participate in the proceedings before this Court;

(b)    give clear instructions to her lawyers; and

(c)    understand and act on the advice which she is given.

4.    Any report provided in accordance with Order 2(a) must also set out the basis for the opinions expressed on the matters listed in Order 3, including outlining the assessment or tests that were undertaken.

5.    If the appellant does not comply with Order 2, the appeals in NSD 1105 of 2023, NSD 472 of 2024 and NSD 918 of 2024 will be dismissed upon non-compliance pursuant to r 5.21(a) of the Rules and s 25(2B)(ba) and (bb)(i) of the Federal Court of Australia Act 1976 (Cth).

6.    The pro bono legal representatives of the appellant must:

(a)    by 4.00pm on 17 June 2026, notify the appellant of these orders; and

(b)    by 4.00pm on 24 June 2026, file an affidavit setting out the steps taken to notify the appellant of these orders.

7.    Liberty to apply.

THE COURT NOTES THAT:

8.    By the time specified in Order 6(a), the appellant’s pro bono legal representatives are expected to:

(a)    contact the appellant by telephone and text message to alert the appellant that orders have been made in these proceedings, and that a copy of these orders will be forwarded by email to the appellant; and

(b)    forward by email a copy of these orders to the appellant.

9.    If the appellant requires support making the necessary arrangements to comply with these orders, her pro bono legal representatives are requested as officers of the Court to provide that assistance.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    Ms Aishwarya Meshram has instituted three separate proceedings in relation to various orders made and judgments given by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)):

(1)    NSD 1105/2023: An appeal from orders made in the interlocutory judgment, Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718, which summarily dismissed various claims made by Ms Meshram, as well as from costs orders made on 14 October 2022 following the interlocutory judgment, and from the whole of the primary judgment given in Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784;

(2)    NSD 472/2024: The necessary application for an extension of time and leave to appeal the interlocutory judgment outlined above; and

(3)    NSD 918/2024: An appeal from costs orders made on 17 June 2024 in Meshram v Bing Lee Electrics Pty Ltd (Costs) [2024] FedCFamC2G 543 following the primary judgment.

2    For convenience, I will refer to these proceedings collectively as the appeals.

3    These reasons deal with two interlocutory applications from the respondents to dismiss the appeals. For the following reasons, I will make self-executing orders for the dismissal of the appeals if Ms Meshram does not take the steps identified in the orders.

PROCEDURAL HISTORY

4    Before turning to those dismissal applications, it is necessary to set out briefly the relevant procedural history of these appeals.

5    Ms Meshram first commenced the proceeding which precipitated these appeals on 11 May 2020 in this Court. The proceeding was then transferred to the FCFCOA (Div 2). In that Court, summary judgment was given on 1 September 2022 (the interlocutory judgment) in relation to claims against some of the respondents. The remaining claims were dismissed on 31 August 2023 in the primary judgment. The costs orders were made, and accompanying reasons published, on 17 June 2024.

6    The appellant then lodged for filing the appeals the subject of these reasons:

(1)    In relation to NSD 1105/2023, on 28 September 2023 (followed by an Amended Notice of Appeal on 10 April 2024 and a Further Amended Notice of Appeal on 23 September 2024); and

(2)    In relation to NSD 918/2024, on 15 July 2024.

7    NSD 472/2024 is an application for an extension of time and leave to appeal in relation to NSD 1105/2023, insofar as that appeal arises from the orders of the interlocutory judgment. The application for an extension of time and leave to appeal was filed on 22 April 2024 and sought to rely on the Amended Notice of Appeal lodged for filing on 10 April 2024 in NSD 1105/2023.

8    On 30 January 2024, an order was made for the issuing of a certificate referring the appellant for legal assistance. Ms Meshram has been represented by legal representatives on a pro bono basis since at least April 2024. During a case management hearing on 8 July 2025, counsel for Ms Meshram indicated that the pro bono representation extended to all three appeals.

9    On 8 August 2024, and again on 7 July 2025, in all three appeals, Ms Meshram personally lodged for filing identical interlocutory applications seeking (a) a stay of the costs orders until the finalisation of the appeals; and (b) to consolidate the three appeals.

10    NSD 1105/2023 and NSD 472/2024 were subject to unsuccessful court-ordered mediation. On 11 March 2025, the appeals in NSD 1105/2023 and NSD 472/2024 were listed for hearing on 1 and 2 September 2025.

11    On 11 June 2025, the respondents lodged for filing an interlocutory application in NSD 1105/2023 for an order pursuant to s 56(1) and (2) of the Federal Court of Australia Act 1976 (Cth) and r 36.09(1)(a) of the Federal Court Rules 2011 (Cth) that Ms Meshram provide security for the payment of the respondents’ costs of and incidental to the appeal.

12    The interlocutory applications (for a stay of the costs orders and for security of costs) were listed to be heard on 12 August 2025.

Concerns raised about Ms Meshram’s legal capacity

13    Prior to the hearing of the interlocutory applications, Ms Meshram’s pro bono counsel and solicitors raised with the Court concerns about her mental capacity to participate in these appeals and to provide them with instructions. Following a case management hearing on 8 July 2025 to consider the matter, I made orders on 11 July 2025, including an order to vacate the listed hearing dates.

14    The accompanying reasons, published as Meshram v Bing Lee Electrics Pty Ltd [2025] FCA 769 (the earlier reasons), set out the principles to be applied when concerns are raised with the Court about the legal capacity of a party to participate in legal proceedings and instruct legal representatives. For the purposes of these reasons, familiarity with those earlier reasons is assumed.

15    In notations to my orders of 11 July 2025, I recorded that Ms Meshram’s legal representatives were to arrange for her to meet with a consultant psychiatrist for the purpose of evaluating her legal capacity to participate in, and give instructions for the purposes of, these appeals. This proposal had been suggested by Ms Meshram’s legal representatives. It was made clear that Ms Meshram was not being compelled to attend such a meeting, and I made no order to that effect. However, the notations recorded that Ms Meshram would not be permitted to take further steps in the appeals without leave of the Court. Ms Meshram’s legal representatives, in their capacity as officers of the Court, were requested to assist in arranging that consultation.

Case management hearing on 8 October 2025

16    On 8 October 2025, a case management hearing was held remotely to update the Court on actions taken to comply with the orders of 11 July 2025. Relying on an affidavit affirmed by Piratheep Kirupakaran on 27 August 2025 (first Kirupakaran affidavit), the appellant’s legal representatives outlined the steps taken to organise the appellant’s attendance at an appointment with a consultant psychiatrist. In short, (a) an appointment was made; (b) multiple emails and text messages were sent to Ms Meshram to confirm whether she would attend the appointment; (c) ultimately, no confirmation was provided and the appointment was cancelled; and (d) Ms Meshram did not attend at the scheduled time or seek to reschedule.

17    Ms Meshram attended the case management hearing on 8 October 2025. On the basis of the first Kirupakaran affidavit and Ms Meshram’s responses to my questions at the case management hearing, I am satisfied that Ms Meshram was notified by her legal representatives of the orders made on 11 July 2025 and of the appointment that she failed to attend. I am also satisfied that Ms Meshram did not respond to the multiple emails and text messages sent to her by her legal representatives between 11 July 2025 and 7 August 2025.

18    On the day of the case management hearing on 8 October 2025, Ms Meshram sent an email to my chambers without copying in the respondents or her pro bono representatives. She was identified as the author of the email and the email address from which the email was sent can be readily identified as belonging to Ms Meshram. The email relevantly attached the following:

(1)    A letter from a general practitioner dated 21 August 2025 which stated that Ms Meshram had the capacity to give instructions to her legal representatives, did not require the appointment of a litigation representative and any enforcement would have a further detrimental effect on her. The letter also requested the Court to provide Ms Meshram with an extension of time until she finds other pro bono legal representatives and for the Court to assist in that process.

(2)    Written submissions. I will refer later in more detail to the substance of these submissions, which included matters Ms Meshram referred to orally during the case management hearing that same day. These included (a) submissions in support of leave to file an interlocutory application for a stay of the appeals; (b) submissions in support of the appeals being stayed until the appointment of new pro bono representatives and the stabilisation of Ms Meshram’s health; (c) assertions that Ms Meshram had capacity to continue the appeals without a litigation representative; (d) complaints about her pro bono legal representatives; (e) a request for the Court to assist in securing new pro bono legal representatives; (f) a request for an order setting aside the orders made on 11 July 2025; and (g) a reference to two cases which she submitted supported her position opposing the orders made on 11 July 2025 (I will return to these below).

19    While Ms Meshram said at the case management hearing that these documents were sent to my chambers on a confidential basis, the substance of what was included and what is summarised in the previous paragraph (including a reference to the two cases) was repeated by Ms Meshram in open court.

20    At the end of the case management hearing on 8 October 2025, I indicated that I would consider what orders were appropriate after reviewing the material sent by Ms Meshram to my chambers.

Orders dated 3 November 2025

21    On 3 November 2025, I made orders in each of the three appeals that, by 4.00pm on 12 December 2025, Ms Meshram was to either (a) provide a report from a registered psychologist assessing her legal capacity, or (b) appoint a litigation representative of her choice consistently with rr 9.62 and 9.63 of the Rules. As is apparent from the notes to the orders, when understood against the previous Court orders, the reference to a registered “psychologist” was included in error and was intended to be a reference to a registered "psychiatrist”. However, nothing turns on that discrepancy. The notes to the orders made it clear that, until further order, the appellant’s legal representatives were to remain on the record to assist the Court.

22    I am satisfied on the basis of an affidavit affirmed on 10 December 2025 by Piratheep Kirupakaran (second Kirupakaran affidavit) that Ms Meshram’s legal representatives sent to Ms Meshram:

(1)    An email on 4 November 2025 attaching a copy of my orders dated 3 November 2025;

(2)    A text message on 5 November 2025 informing her of the email sent the day before;

(3)    An email on 9 December 2025 confirming the next case management hearing to be held on 15 December 2025; and

(4)    A text message on 9 December 2025 confirming that an email had been sent in relation to the next case management hearing.

23    It was also confirmed from the bar table at the case management hearing on 15 December 2025 that Ms Meshram was informed by email and text message that there was a change of time for the case management hearing on that day.

24    Ms Meshram did not comply with the orders of 3 November 2025. Nor did she communicate with her legal representatives in relation to those orders.

Case management hearing on 15 December 2025

25    At the commencement of the case management hearing on 15 December 2025, my chambers received an email from an unidentified sender attaching the following documents:

(1)    A letter dated 11 December 2025 from the same general practitioner who had written the letter on 21 August 2025 stating, in almost identical terms, the matters set out in the earlier letter. It stated that the enforcement of a psychiatric assessment would have further detrimental effects on Ms Meshram’s mental health and that there was no clinical necessity for the appointment of a litigation representative. It further supported the appointment of new pro bono legal representatives; and

(2)    Written submissions electronically signed by Ms Meshram which, amongst other things, contended that she should not be compelled to attend a psychiatric assessment or appoint a litigation representative, and that the orders of 3 November 2025 should be set aside. The submissions again referred to the two cases mentioned at the case management hearing on 8 October 2025 (to which I will return).

26    The covering email stated that the documents were being sent on behalf of Ms Meshram and that Ms Meshram was unwell.

27    The email copied in an address readily identifiable as belonging to Ms Meshram.

28    The email also requested that the documents not be shared because they were confidential and private. The summary set out at [25] above outlines the content of the documents that in substance repeats what Ms Meshram had stated earlier in open court or is otherwise relevant for the determination of the dismissal applications.

29    At that case management hearing on 15 December 2025, the respondents indicated their intention to seek an order dismissing the appeals.

Orders dated 18 December 2025

30    On 18 December 2025, I made orders that the respondents file and serve any application they wished to make in relation to the future conduct of the appeals, along with written submissions and any evidence to be relied on. In their capacity as officers of the Court, Ms Meshram’s legal representatives were directed to file and serve any written submissions and evidence in response. Ms Meshram was also provided with an opportunity to file and serve written submissions and evidence in response.

31    The time for compliance with the orders was extended on at least two occasions at the request of the respondents and Ms Meshram’s pro bono legal representatives. The extended date for Ms Meshram’s submissions was 26 February 2026 although, my orders of 13 February 2026 noted that it was open to Ms Meshram to seek a further extension.

32    Identical interlocutory applications for dismissal were lodged for filing on 2 February 2026 and 10 February 2026 by respective sets of respondents. I will return to the terms of these dismissal applications below.

The email of 26 February 2026

33    On 26 February 2026, an email was sent to my chambers. The email did not identify the sender’s details. It was sent from the same email address used to send the email on 15 December 2025. The email copied in an address readily identifiable as belonging to Ms Meshram.

34    The email stated that “[o]n behalf of Ms Meshram”, the following urgent issues were being raised for the Court’s attention:

(1)    That Ms Meshram was in ill health as indicated in an attached letter from a general practitioner dated 26 February 2026;

(2)    A request that the appeals be stayed or that an extension of time be allowed for the filing of documents until new pro bono legal representatives were appointed;

(3)    That there was an arrangement whereby Ms Meshram’s legal representatives would call or text her before sending an email, but that she had not received any call or text since 21 October 2025; and

(4)    Consequently, Ms Meshram was unaware of any filing deadlines.

35    The attached letter was from the same general practitioner who authored the earlier letters. It stated that Ms Meshram was suffering from certain ailments and supported a stay of the appeals or an extension until Ms Meshram’s health stabilised. It repeated the request for the appointment of new pro bono legal representatives. It did not repeat the statements in the previous letters that Ms Meshram had the capacity to give instructions to her legal representatives and did not require the appointment of a litigation representative. The covering email again stated that the email and attachments were confidential and private. The summary I have set out outlines the content of the documents that in substance repeats what Ms Meshram had stated earlier in open court or is otherwise relevant for the determination of the dismissal applications.

36    At my request, on 4 March 2026, the Court Registry replied to the email of 26 February 2026 requesting that (a) the sender of that email confirm their identity; (b) the other parties and Ms Meshram’s legal representatives be included in all communications with my chambers; and (c) the email (excluding the medical certificate) be forwarded to those other parties. A follow up email was sent by the Court Registry on 26 March 2026 again asking for (a) confirmation of the identity of the sender of the 26 February 2026 email; and (b) confirmation that that email had been forwarded to the other parties as earlier requested. No response has been received to either email request.

The email of 15 May 2026

37    On 15 May 2026, a further email was sent to my chambers. On this occasion the author of the email was identified as “Mr Meshram”. The author used the same email address that was used for the emails dated 15 December 2025 and 26 February 2026. The email copied in an address readily identifiable as belonging to Ms Meshram.

38    The email attached a letter from the same general practitioner dated 14 May 2026 stating that Ms Meshram had informed the general practitioner that Ms Meshram was travelling overseas to visit her mother who is unwell. The letter requested the Court to support Ms Meshram during this period.

39    The author of the email was requested by the Court Registry to identify their authority to make representations to the Court on Ms Meshram’s behalf and to provide that email communication to the respondents and Ms Meshram’s pro bono representatives. There has been no response to that email.

The respondents’ dismissal applications

40    The respondents seek to have the three appeals dismissed. There are two interlocutory applications on behalf of separately represented parties:

(1)    By the first respondent and fourth to eleventh respondents to NSD 1105/2023 and NSD 472/2024, and all the respondents to NSD 918/2024 (first set of respondents); and

(2)    By the second and third respondents to NSD 1105/2023 and NSD 472/2024 (second set of respondents).

41    The grounds for the dismissal applications are in identical terms, being:

(1)    For failure by Ms Meshram to comply with a direction of the Court, pursuant to s 25(2B)(bb)(i) of the Federal Court Act and/or r 36.74(1)(a) of the Rules; or

(2)    In the alternative, for failure by Ms Meshram to prosecute the appeals, pursuant to s 25(2B)(ba) of the Federal Court Act and/or r 36.74(1)(d) of the Rules.

42    Orders are also sought for the dismissal applications to be dealt with without an oral hearing pursuant to r 36.41(1)(e)(i) and (iii) of the Rules. An affidavit sworn by Caroline Hutchinson on 2 February 2026 was relied on in support of the application by the first set of respondents. A further affidavit sworn by Amanda Harvey on 10 February 2026 was relied on in support of the application by the second set of respondents.

Submissions

Respondents’ submissions

43    The first set of respondents make the following submissions:

(1)    Ms Meshram has not complied with the Court’s orders to progress the appeals or engaged with her pro bono legal representatives.

(2)    Ms Meshram has failed to avail herself of the ample opportunity provided to her to progress the appeals.

(3)    The appeals are now protracted and have had an immense impact on many individual respondents. Because the appeals have languished, there is now real and serious prejudice to the ability of the respondents to defend themselves.

(4)    The delay in prosecuting the appeals mirrors what occurred in the proceeding below.

(5)    Relying on Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; 27 FCR 388 at 396 (Wilcox and Gummow JJ), the cumulative history of non-compliance indicates an inability or unwillingness to cooperate with the Court and the respondents in having the appeals ready for hearing.

(6)    Relying on Nandutu v Chapman (No 2) [2021] FCA 45 at [23] (Stewart J), “the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes ‘as quickly, inexpensively and efficiently as possible’” must also be considered: Federal Court Act ss 37M(1) and 37N(1). The time and resources which have been consumed by the appeals first instituted on 28 September 2023 are inordinate.

(7)    On the question of whether my orders of 3 November 2025 should be set aside, it was submitted that Order 1 falls away if the appeals are dismissed and, accordingly, it should be set aside. It is convenient to deal with this submission at this stage. Non-compliance with my orders of 3 November 2025 forms a basis for the dismissal applications and, therefore, should not be set aside for the reason that the respondents submit.

44    The second set of respondents supplemented those submissions by adding that the claims against the second and third respondents to NSD 1105/2023 and NSD 472/2024 had been summarily dismissed in the interlocutory judgment and they took no further part in the proceeding that resulted in the primary judgment.

Pro bono counsel’s submissions

45    Ms Meshram’s pro bono legal representatives continue to hold concerns about her legal capacity to provide instructions. Accordingly, they provided submissions as officers of the Court and their submissions were not made with Ms Meshram’s authority, nor were they approved or adopted by her. As officers of the Court, Ms Meshram’s legal representatives were of considerable assistance as a contradictor to the respondents’ submissions.

46    The submissions in opposition to the respondents directed the Court to the considerations outlined by a Full Court in Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180; 91 ATR 546 at [43]–[44] and made the following points:

(1)    The substantial reason for Ms Meshram’s delay in bringing the appeals on for hearing is that a question has arisen about her legal capacity. That circumstance was not raised by Ms Meshram; nor was it her fault or the product of a conscious choice.

(2)    There has been substantial compliance, or at least a serious effort to comply, with the Court’s order to provide a medical report from a registered psychiatrist/psychologist because Ms Meshram provided a medical certificate from her general practitioner.

(3)    The statement in that letter that a psychiatric assessment will cause Ms Meshram mental harm should be taken as an adequate explanation for the failure to comply with the Court’s order.

(4)    Other than that non-compliance, there has been no other non-compliance with the orders of this Court. The history of the first instance proceeding is irrelevant.

(5)    An order to dismiss the appeals would result in Ms Meshram losing her opportunity to prosecute her appeals, including the significant costs orders that have been made against her. These consequences are unjustly disproportionate to Ms Meshram’s conduct.

(6)    The options to the Court are as follows:

(a)    If the Court can determine the question of capacity on the basis of the letters from the general practitioner, then steps can be taken to progress the appeals.

(b)    If the Court can determine that legal capacity is lacking, then a litigation representative can be appointed.

(c)    In neither case would dismissal be justified.

(d)    If the Court cannot resolve the question of legal capacity, then the consequence of dismissal for failing to assist the Court in resolving the question must be put to Ms Meshram in clear terms before an order to that effect is made.

(7)    Justice is the governing requirement of s 37M of the Federal Court Act, not quickness, inexpensiveness and efficiency. It would not be just to dismiss the appeals without that consequence first being put to Ms Meshram.

Ms Meshram’s position

47    To the extent that it can be ascertained from what has been said by Ms Meshram at case management hearings and repeated in communications with my chambers, it appears that Ms Meshram’s position is that:

(1)    She is currently in poor health, but retains legal capacity.

(2)    Relying on the letters from her general practitioner:

(a)    She has legal capacity to understand, retain and communicate instructions, but requires an adjournment until the Court appoints new pro bono legal representatives who will act according to her instructions (noting that the letter dated 26 February 2026 supports an adjournment until her health stabilises but makes no mention of capacity);

(b)    Forcing her to undertake a psychiatric assessment will affect her mental health; and

(c)    There is no basis for the appointment of a litigation representative.

(3)    She has not received any communication by text as agreed from her pro bono legal representatives since October 2025 and, consequently, is unaware of the timetable set by the Court’s order of 18 December 2025. I note that in submissions emailed to my chambers on 15 December 2025, Ms Meshram indicated that she blocked communication from her pro bono solicitors from 8 October 2025. However, the email sent on 26 February 2026 claimed that her pro bono legal representatives had not texted according to their agreed arrangement.

(4)    She should be permitted appropriate time to engage new pro bono legal representatives arranged by the Court and that the Court allow an extension of time for the filing of documents.

(5)    The orders made on 11 July 2025 and 3 November 2025 should be set aside.

48    In support of her request for the orders of 11 July 2025 to be set aside, Ms Meshram argues that they were (a) made without procedural fairness to her; and (b) based on submissions of her pro bono legal representatives without her instructions. While Ms Meshram was present at both the case management hearings on 8 July 2025 and 8 October 2025, and given the opportunity to address the Court, the fundamental difficulty is that the doubts about Ms Meshram’s legal capacity present obstacles in the path of both submissions: until the Court is satisfied of Ms Meshram’s legal capacity, she is not competent to act for herself and her pro bono legal representatives act as officers of the Court.

49    As foreshadowed earlier in these reasons, Ms Meshram has referred to the following decisions:

(1)    Elisha v Vision Australia Ltd [2024] HCA 50; 421 ALR 184; and

(2)    Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142.

50    It is convenient to address those cases at this point.

51    Elisha concerned the recognition that an employee can recover damages for psychiatric injury arising from breach of an employment contract and does not appear to be relevant to the issues now facing the Court.

52    In Chopra, the District Court of New South Wales made an order that the applicant attend psychometric testing arranged by the respondent, the State of New South Wales. The proceeding involved a claim for work injury damages brought by the applicant against the respondent. Following the applicant’s refusal to attend an examination for psychometric testing by a clinical psychologist, the respondent applied to the District Court for an order that she submit to the examination, and the Court made that order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

53    The applicant had been assessed by two psychiatrists whose reports had cast no doubt on any matter to which psychometric testing might be thought relevant. The only evidence supporting the application for the order sought under r 23.4 of the UCPR was an affidavit by the respondent’s solicitor stating that he had formed the view that an examination was necessary having reviewed a clinical entry by a treating doctor. Against that evidence, there was evidence from the applicant’s treating psychiatrist and an independent psychiatrist casting doubt on the merit of the psychometric testing of the applicant and cautioning that there was a high risk that such testing might cause the applicant’s condition to deteriorate. It would appear that the testing was sought by the respondent because of a concern that the applicant was exaggerating or feigning her condition.

54    The Court of Appeal (Mitchelmore JA, with Kirk JA and Simpson AJA agreeing) concluded that the primary judge’s exercise of discretion miscarried. The only ground of appeal considered, and upheld, was that the primary judge had not had regard to the evidence of the treating and independent psychiatrists (at [38]). In re-exercising the discretion under r 23.4 of the UCPR, the Court of Appeal considered, on the one hand, the absence of evidence in support of subjecting the applicant to psychometric testing and, on the other hand, the evidence from the psychiatrists that the testing lacked merit and gave rise to risks to the applicant’s health (at [42]–[50]).

55    The circumstances in these appeals are very different. The Court is not weighing considerations to determine the reasonableness of a request and refusal to attend a medical examination with a view to the opposing party discovering evidence that might be relevant to the issues in the proceeding. On the dismissal applications, the Court must determine the basic question of whether the appellant has legal capacity to prosecute the appeals. The concern was raised by Ms Meshram’s own legal representatives, a decision unlikely to have been taken lightly, and I have not been persuaded one way or the other whether Ms Meshram has the requisite legal capacity. There is no evidence from a psychiatrist or psychologist before me and, as I will explain further below, the evidence of Ms Meshram’s general practitioner provides an inadequate foundation to make the relevant determination.

56    In the absence of an assessment that persuades me that Ms Meshram has legal capacity, or an application for the appointment of a litigation representative, the appeals have reached an impasse that cannot continue.

57    For completeness, in submissions sent to my chambers, Ms Meshram also sought to distinguish Goddard Elliott (a firm) v Fritsch [2012] VSC 87—a case referred to in my earlier reasons. Essentially, Ms Meshram’s submission is that the evidence of her general practitioner is such that it supports the conclusion that Ms Meshram has legal capacity. As I will explain further below, I am not satisfied that Ms Meshram has legal capacity on the basis of the statements made in the general practitioner’s letters.

legal principles

58    Section 25(2B) of the Federal Court Act relevantly provides:

25 Exercise of appellate jurisdiction

…

(2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb) make an order that an appeal to the Court be dismissed for:

(i) failure to comply with a direction of the Court; …

59    The power in s 25(2B) of the Federal Court Act applies to applications for leave to appeal and extensions of time within which to appeal: Federal Court Act ss 25(2)(a)–(b) and (2BA).

60    Rule 36.74(1) of the Rules relevantly provides:

36.74 Application to dismiss appeal

(1) A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a) comply with a direction of the Court;

…

(d) prosecute the appeal.

61    Division 5.2 of the Rules sets out orders that may be made on default of a party:

Division 5.2—Orders on default

5.21 Self‑executing orders

A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:

(a) the proceeding be dismissed; …

5.22 When a party is in default

A party is in default if the party fails to:

(a) do an act required to be done, or to do an act in the time required, by these Rules; or

(b) comply with an order of the Court; or

(c) attend a hearing in the proceeding; or

(d) prosecute or defend the proceeding with due diligence.

5.23 Orders on default

(1) If an applicant is in default, a respondent may apply to the Court for an order that:

(a) a step in the proceeding be taken within a specified time; or

(b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i) immediately; or

(ii) on conditions specified in the order.

…

62    The applicable principles are well accepted. Dismissal of an appeal for non-compliance with the Court’s orders or for failure to prosecute is “a drastic remedy that should be sparingly resorted to”: Nandutu at [22] (Stewart J). In Lenijamar, Wilcox and Gummow JJ said that one category where dismissal might be justified is (at 396):

… cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period …

63    While the interests of the appellant are material to the exercise of the discretion, there are also other interests to consider. In terms applicable to dismissal for failure to prosecute, but equally applicable to dismissal for non-compliance, Stewart J said the following in Nandutu (at [22]–[23]):

I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances. It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion. These divergences in interests must be balanced.

However, there are also other interests that must be brought into consideration. These include the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the [Federal Court] Act. Parties to a civil proceeding, including an appeal, must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1) of the [Federal Court] Act. These provisions, and the jurisprudence of the Court, recognise the broader public interest and the interest of other litigants in other cases in having proceedings brought to a just and efficient conclusion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [30] per French CJ, [93]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

64    Accordingly, in considering the dismissal applications, account must be taken of the interests of all parties and the institutional and systemic interests in maintaining a system for the administration of justice that is both just and efficient.

65    In the circumstances of this case, the respective bases for the dismissal applications converge. The Court’s orders made on 3 November 2025 were directed to progressing the appeals, having reached an impasse. Non-compliance with those orders therefore forms a necessary ingredient of the claimed failure to prosecute the appeals.

Consideration

66    The application of the principles in this case presents some complexity because they are premised on the appellant having legal capacity to conduct the appeals and instruct legal representatives. Only if the appellant has legal capacity can the necessary judgements be made about the consequences that should follow from non-compliance and failure to prosecute.

67    I will start my consideration of the dismissal applications by setting out my findings on three matters. First, I am not satisfied on the information before me that Ms Meshram has legal capacity. The letter from Ms Meshram’s general practitioner dated 11 December 2025 relevantly repeats the content of the earlier letter dated 21 August 2025. Each of those letters is brief and conclusory in its terms, and neither provides a basis for the opinion expressed or any recognition of the features of the definition of legal capacity that need to be considered by the Court. The letter dated 26 February 2026 does not repeat the same statement about the existence of legal capacity.

68    However, nor am I satisfied that Ms Meshram lacks legal capacity. The concern having been raised by Ms Meshram’s pro bono representatives, there must be a factual basis upon which I can be positively satisfied one way or the other.

69    Without further evidence on the question of legal capacity, the consequence is that it is not possible to take steps either to progress the appeals with Ms Meshram’s involvement or for the Court to appoint a litigation representative to conduct the appeals on Ms Meshram’s behalf.

70    Secondly, I am also not satisfied that there has been substantial compliance with the Court’s orders of 3 November 2025. By that stage, Ms Meshram had sent me the first of the letters from her general practitioner dated 21 August 2025. Providing a further letter in materially the same terms does not satisfy the requirement placed on Ms Meshram by the orders of 3 November 2025.

71    Thirdly, I am satisfied that Ms Meshram was aware of the Court’s orders dated 3 November 2025. I accept the evidence in the second Kirupakaran affidavit that the orders were emailed to Ms Meshram followed by a text message. Additionally, submissions attributed to Ms Meshram, that were sent to my chambers on 15 December 2025, sought to set those orders aside. Necessarily, Ms Meshram must have been aware of them.

72    In considering the dismissal applications, the Court is placed in a paradoxical position. On the one hand, I need to be satisfied that Ms Meshram has legal capacity to identify that she has a legal problem (Goddard Elliott at [557] (Bell J))—the relevant legal problem being that she is facing an order to dismiss the appeals. On the other hand, unless Ms Meshram undertakes an assessment by an appropriately qualified specialist, it is not possible for the Court to determine with the requisite confidence that Ms Meshram has the capacity to understand those consequences.

73    Equally, in assessing whether Ms Meshram has conducted herself in a way that warrants dismissal, I must be confident that she has legal capacity. If she does, then I am inclined to agree with the respondents that a dismissal is warranted for failure to comply with my orders of 3 November 2025 and to prosecute the appeals. If Ms Meshram has legal capacity, then she has (a) refused to cooperate and communicate with her pro bono legal representatives; (b) placed unjustified demands on the Court for an adjournment until new pro bono legal representatives are appointed who will take her instructions; and (c) failed to comply with an order of the Court directed to progressing the appeals. There would be a strong case that such conduct would warrant an order dismissing the appeals. That would be the case even without taking account of Ms Meshram’s conduct in the proceeding below.

74    However, if Ms Meshram lacks legal capacity, then I would be inclined to agree with the submissions of her pro bono counsel, made in their capacity as officers of the Court, that she should not suffer the consequences of dismissal and, instead, the appropriate course is to appoint a litigation representative. If a lack of legal capacity casts a shadow on her conduct in this case, I agree with the submission that what occurred at first instance is irrelevant.

75    Yet, the impasse arising from the uncertainty about Ms Meshram’s legal capacity cannot continue. The prolonged impact of a protracted process on the large number of individual respondents, and on the Court’s resources, cannot be permitted to continue indefinitely in a state of uncertainty.

76    Nonetheless, I also accept the submissions of Ms Meshram’s pro bono counsel that she should be on clear notice that the consequence of non-compliance with the court’s orders will be the dismissal of her appeals. The basic demands of procedural fairness would so require. Accordingly, I will make self-executing orders that will result in dismissal of the appeals if Ms Meshram does not take the necessary steps to progress the appeals.

77    Three final points should be made.

78    First, I accept that there is a risk that, if Ms Meshram in fact lacks legal capacity, she is unlikely to be capable of understanding that she has a legal problem that needs to be resolved. However, as I have indicated, the impasse cannot be allowed to continue indefinitely.

79    Secondly, on a number of occasions Ms Meshram has indicated dissatisfaction with her pro bono legal representatives and has sought a stay of the appeals until the Court has assisted her to secure new pro bono legal representatives who will follow her instructions.

80    It should be made very clear that, if Ms Meshram is able to provide evidence that persuades me that she has legal capacity, as matters currently stand I am unlikely to make a referral for further pro bono assistance. Ms Meshram has had the benefit of pro bono senior and junior counsel and solicitors. The complaints that have been made about those representatives are that they have (a) not sufficiently represented her interests or acted according to her instructions; and (b) raised concerns about her legal capacity (as they were required to do once those concerns arose) without her instructions. There is nothing before me to support Ms Meshram’s assertions that her legal representatives were not providing her with competent representation. Indeed, by raising concerns about her legal capacity, they were acting appropriately and to protect her interests.

81    If I am satisfied that Ms Meshram has legal capacity:

(1)    There will have been no good reason for her to refuse to provide her representatives with instructions;

(2)    I see no good reason as matters currently stand to make a further referral; and

(3)    Ms Meshram will be expected to prosecute the appeals without further delay.

82    Thirdly, the orders will give Ms Meshram the option of providing the Court with a report from a registered psychiatrist or psychologist. I will include in the order the option of a psychologist as well as a psychiatrist because I understand from what has been said during case management hearings that Ms Meshram has had a treating psychologist in the past. I recognise that the cost involved with an independent psychiatric assessment might be difficult for Ms Meshram in her current circumstances, so the option of a psychologist of her choice to undertake an assessment and provide a report might be more manageable for her.

83    The report to be provided to the Court must address the appellant’s capacity to:

(1)    Participate in the proceedings before this Court;

(2)    Give clear instructions to her lawyers; and

(3)    Understand and act on the advice which she is given.

84    It must set out the basis for the opinions expressed on those questions, including outlining the assessment or tests that were undertaken.

85    Given Ms Meshram’s current circumstances, including that she had overseas travel plans in May 2026, I have allowed a six-week period to respond to the orders. If Ms Meshram is willing to undergo an assessment or to appoint a litigation representative, but is unable to do so within the time allowed by the orders I make, she is at liberty to approach the Court for an extension of the date by which those steps can be taken.

Ex parte communications

86    Before concluding, it is necessary to deal with an unfortunate aspect of these appeals. On four occasions, my chambers were contacted by, respectively, Ms Meshram, an unknown person with Ms Meshram’s apparent consent, and Mr Meshram ostensibly emailing on Ms Meshram’s behalf, without the other parties or Ms Meshram’s pro bono representatives being included in those communications. I was requested to keep the first three of those communications confidential, along with the attached doctor’s letters.

87    On the first two occasions the respondents and Ms Meshram’s representatives were aware, through what transpired at case management hearings, of the existence of those communications and, in broad and general terms, the nature of their content. On the third and fourth occasions, the author of the email was asked to provide that communication to the respondents and Ms Meshram’s pro bono representatives. There is nothing to suggest that that has occurred.

88    In light of that fact, I asked my chambers to relay the substance of the ex parte communications (which I have outlined at [18], [25]–[26], [34]–[35] and [37]–[38] above) to the parties and Ms Meshram’s pro bono legal representatives via email on 29 May 2026. Having outlined the substance of the emails to the parties, they were provided with the opportunity to make any further submissions they considered necessary, if any. No further submissions were provided.

89    It is not necessary to take the matter any further. For the most part, the substance of what was communicated to my chambers was disclosed by Ms Meshram in open court. Furthermore, as indicated, the substance of what has been said was set out in an email to the parties. However, if the appeals survive the Court’s self-executing orders, Ms Meshram must understand that she is not to communicate with my chambers without copying the correspondence to the other parties.

conclusion

90    What has transpired since the legal capacity issue was raised has presented difficulties for all parties. However, it is now time for the impasse to be resolved in order for the appeals to progress.

91    Given the prevailing circumstances where (a) neither the respondents nor Ms Meshram’s legal representatives sought to supplement their written submissions at a hearing; and (b) Ms Meshram’s current circumstances, I have decided that it is appropriate that the interlocutory applications for dismissal be determined on the papers: r 36.41(1)(e)(i) and (iii) of the Rules.

92    I will make self-executing orders that all three appeals are to be dismissed if Ms Meshram does not, within six weeks from the date of the Court’s orders, (a) attend a registered psychiatrist or psychologist of her choice for an assessment and provide the report to the Court Registry marked to the attention of my chambers addressing the points outlined at [83]–[84] above; or (b) appoint a litigation representative.

93    Ms Meshram’s pro bono legal representatives are to email Ms Meshram a copy of these orders and to telephone and text Ms Meshram ahead of that email. They will also be required to file an affidavit confirming that those steps have been taken. If Ms Meshram requires support making the necessary arrangements to comply with the orders, then her representatives are requested as officers of the Court to provide that assistance.

94    It follows from what has been said above that the orders made on 11 July 2025 and 3 November 2025 will not be set aside. Nor will there be a stay of the appeals as Ms Meshram requested.

95    The Court acknowledges the ongoing assistance that has been provided by Ms Meshram’s pro bono legal representatives in their capacity as officers of the Court.

Associate:

Dated:    16 June 2026

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SCHEDULE OF PARTIES