Federal Court of Australia

Natch v Stennson Pty Ltd (Leave to Appeal) [2026] FCA 910

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The appellant pay the respondent’s costs of the application on an indemnity basis.

3.    The respondent’s costs of the application are to be determined by the Court:

(a)    otherwise than by taxation; and

(b)    in a lump sum.

4.    By 4:00 pm AEST on 14 August 2026, the respondent file and serve a Costs Summary Affidavit in accordance with the Court’s Costs Practice Note (GPN-COSTS).

5.    By 4:00 pm AEST on 4 September 2026, the appellant file and serve any Costs Response in accordance with GPN-COSTS not exceeding 4 pages in length including attachments.

6.    The quantum of costs will be determined by the Court on the papers.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is yet another matter in a protracted dispute agitated by Mr Mohan Natch. In short, Mr Natch commenced proceedings against a number of entities, including Stennson Pty Ltd (Stennson), in respect of alleged losses consequent upon the depreciation of his land. The proceedings against Stennson were discontinued during the trial and, on 27 October 2021, orders were made requiring Mr Natch to pay Stennson’s costs. He subsequently filed several applications to have that costs order set aside, one of which was dismissed by O’Bryan J in Natch v Stennson Pty Ltd (No 6) [2025] FCA 1683 (PJ). There, his Honour found that the application, which also sought ancillary relief, was “utterly baseless”, and dismissed it with an order for indemnity costs. By the present application, Mr Natch seeks leave to appeal from that interlocutory decision: see Federal Court of Australia Act 1976 (Cth) s 24(1A).

Background

2    The background to this matter was set out by the learned primary judge at PJ [2] – [21], and it need not be repeated. In summary, the four respondents to Mr Natch’s original proceedings were involved in construction works carried out on land owned by Stennson. That land adjoined land owned by Mr Natch and the second applicant, Ms Andal Natch. A necessary aspect of the construction works was the installation of ground anchors beneath the applicants’ land. Mr and Ms Natch alleged that the installation of those anchors diminished the value of their land and commenced proceedings in this Court seeking damages equivalent to that diminution in value.

3    In the course of the hearing of the matter before Anastassiou J in October 2021, his Honour was informed that the proceedings against Stennson were sought to be discontinued, in order to give effect to a settlement which had been agreed between the applicants and the second to fourth respondents.

4    On 27 October 2021, Anastassiou J made orders pursuant to r 26.12(7) of the Federal Court Rules 2011 (Cth) (Rules) granting the applicants leave to discontinue against Stennson, subject to the payment of costs (the “Costs Order”). Rule 26.12(7) creates a presumption, which may be displaced by consent or order, that a party who files a notice of discontinuance is liable to pay the costs of the party against whom the claim is discontinued.

5    His Honour gave ex tempore reasons for making the Costs Order, in which he concluded that the applicants had not established any reason to displace the presumption that they should pay Stennson’s costs. Given the hearing had not concluded, he declined to make any findings on the merits of the proceedings. However, it was noted that, at the time of discontinuance, there was some uncertainty as to whether Mr Natch would have been able to establish that he suffered any loss (assuming he was able to establish liability), by reason of competing expert reports.

6    On 2 December 2021, the applicants made an application for an extension of time in which to file an application for leave to appeal against the Costs Order. That application was dismissed with costs on 2 June 2022 by O’Callaghan J: Natch v Stennson Pty Ltd [2022] FCA 641.

7    The applicants then attempted to file a Notice of Appeal against the decision of O’Callaghan J, though that was dismissed in July 2022 on the basis that it was incompetent: Natch v Stennson Pty Ltd [2022] FCA 801.

8    In September 2024, Stennson’s costs incurred in both the substantive proceedings and the application for an extension of time, were taxed and certificates of taxation were issued. During that process, the taxing officer refused an application by Mr Natch for discovery from Stennson. That provoked a number of applications for review of the discovery decision and of the taxation, which were heard and determined by O’Bryan J: Natch v Stennson Pty Ltd (No 2) [2024] FCA 1498; Natch v Stennson Pty Ltd (No 3) [2025] FCA 472; Natch v Stennson Pty Ltd (No 4) [2025] FCA 473; Natch v Stennson Pty Ltd (No 5) [2025] FCA 807. The application to review the discovery decision was dismissed, though the review of the taxation was allowed on a minor point.

9    On 22 January 2025, Mr Natch filed an application for leave to appeal against O’Bryan J’s dismissal of the application for review of the discovery decision, though that was dismissed on 9 December 2025: Natch v Stennson Pty Ltd (Leave to Appeal) [2025] FCA 1550.

10    On 17 October 2025, Mr Natch filed yet another application for the Costs Order to be set aside or permanently stayed (the “Application”). The Application was dismissed with indemnity costs by the primary judge, from which Mr Natch now seeks leave to appeal.

The primary judge’s decision

11    The Application primarily sought two orders: firstly, that the Costs Order be set aside under r 39.05 of the Rules because it was “obtained by misrepresentations made by [Stennson], through its pleadings, submissions and evidence filed in the proceeding”; and second, that Stennson and/or its legal team pay Mr Natch’s “thrown away costs” on an indemnity basis, purportedly under r 40.06 of the Rules.

12    The relevant provisions of the Rules are as follows:

39.05     Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

40.06    Costs improperly, unreasonably or negligently incurred

A party may apply to the Court for an order:

(a)    that any costs that have been improperly, unreasonably or negligently incurred be disallowed; or

(b)    directing an inquiry whether any costs have been improperly, unreasonably or negligently incurred and providing for the costs of such inquiry.

13    In support of the application under r 39.05, Mr Natch advanced six allegations of fraud which were said to have infected the conduct of the proceedings before Anastassiou J and, in turn, the Costs Order.

14    Firstly, it was submitted that Stennson’s pleaded defence and cross-claim “deceived the Court into believing it was a passive entity with only contingent liability” and concealed the statutory duties it purportedly owed under s 99 of the Building Act 1993 (Vic). That was rejected as not giving rise to an arguable claim of fraud, because the duties contained in a statute are not capable of being concealed in a fraudulent manner and, in any event, Stennson’s pleadings were in no way connected with the applicants’ discontinuance: PJ [30].

15    Second, Mr Natch asserted that certain inconsistencies between Stennson’s amended defence and its cross-claim “constituted a deliberate calculated manipulation”. That was also rejected on the basis that the inconsistencies were pleaded as alternatives, and in any event, were known to Mr Natch at the time the proceedings were discontinued: PJ [32].

16    Third, Mr Natch alleged that the submission made by Stennson at trial that it was an “innocent bystander” was “knowingly false, designed to deceive the Court into believing [Stennson] was not a proper and necessary party to the litigation”. He referred to evidence adduced by a director of Stennson in other proceedings to the effect that Stennson regularly held site meetings with the builder and architects in relation to the construction work. The primary judge rejected that submission on the basis that there was no evidence to suggest fraud in Stennson’s defence of the proceedings and, in any event, that aspect of the defence was in no way connected with the discontinuance of the proceedings: PJ [34].

17    Fourth, Mr Natch submitted that Stennson “fraudulently suppressed the materiality of” certain clauses of the major works building contract between Stennson and its builder, Camillo Builders Pty Ltd, “by failing to lead evidence on them or rely on them in its submissions and avoided covering these contractual clauses on the overall control is exercised on Camillo”. That was rejected because the relevant contract was in evidence in the proceedings, and it was open to the applicants to make any submissions they wished as to its contents or, if they had not had sufficient time to consider the document, request an adjournment of the hearing: PJ [36].

18    Fifth, Mr Natch alleged that Stennson “fraudulently suppressed the materiality” of certain expert reports said to have warned it of the risks of the proposed works, “by failing to lead evidence on them at trial and did not rely on them”. That was rejected because, as it transpired, the applicants’ own expert had access to those reports: PJ [38].

19    Sixth, Mr Natch asserted that Stennson’s “continued denial of vicarious liability in the face of conceded illegality was a direct attempt to set up Camillo as a liability scapegoat and deceive the Court, thereby fraudulently positioning itself as the victor entitled to costs upon the Applicant’s discontinuation”. Like the first, this allegation was also rejected on the basis that there is nothing fraudulent about a party maintaining a consistent defence to a claim, and it was open to the applicants to contest that defence, rather than resolving the proceedings, if they wished: PJ [40].

20    In the result, the primary judge declined to set aside the Costs Order. For the same reasons, his Honour rejected the application under r 40.06 of the Rules.

21    His Honour also considered that, notwithstanding that Mr Natch was a self-represented litigant, the circumstances of the case warranted an order of indemnity costs against him. That was because he concluded that the Application was an abuse of process, involved the use of the Court’s procedures to cause vexation and oppression to Stennson, and involved a litany of allegations of misconduct of which none was made out: PJ [43] – [53].

Principles guiding the discretion to grant leave to appeal

22    The Court will only grant leave to appeal an interlocutory decision if the applicant establishes, firstly, that “the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”, and second, that “substantial injustice would result if leave were refused”: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398 (Decor); Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149, 160 [35]. Though not comprising a “hard and fast rule”, these cumulative criteria provide general guidance as to the exercise of the Court’s discretion: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, 249 [29]; Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 [39]; Roberts-Smith v Roberts [2022] FCA 524 [14] (Roberts-Smith).

23    As to the first criterion, in the ordinary course, the applicant is required to show that sufficient doubt arises from the decision such that its reconsideration by an appellate court is justified. However, in cases where, as here, the decision from which the applicant seeks to appeal is discretionary in nature, it must generally be shown that the decision involved errors of the kind described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 – 505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed…

24    Similar considerations apply with respect to the second criterion. Generally, the existence of a substantial injustice is established by showing that the decision in question had the effect of finally determining the rights of the parties: Decor 400; Roberts-Smith [16]. However, where the decision concerns a question of practice and procedure and no questions of general principle are at stake, the Court will be slow to grant leave to appeal, for appellate intervention in such matters requires the “exercise of particular caution”: Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 – 665 [34]; Roberts-Smith [17].

The decision is not attended with sufficient doubt

25    Mr Natch raises some 14 grounds of appeal against the primary judge’s decision.

26    It should be noted from the outset that the material filed in support of those grounds is not in a form ordinarily acceptable in this Court. Mr Natch’s amended draft notice of appeal is prolix, does not comply with the requirements of r 36.01(2) of the Rules, and is incomprehensible in some respects. His written submissions, which were filed out of time, do not comply with the standard 12-point font size and 1.5-line spacing requirements. They appear deliberately formatted so as to accommodate lengthy submissions within the page limit imposed by the Court. Moreover, his affidavit, sworn 19 March 2026, contains irrelevant and inadmissible material. Stennson, acting reasonably, did not oppose the reliance placed on these materials in circumstances where Mr Natch is self-represented.

27    In any event, for the reasons which follow, none of the grounds of appeal demonstrates error in the primary judge’s exercise of discretion.

Ground 1

28    The first ground of appeal is that the primary judge “erred in law by failing to provide any, or any adequate, reasons for the orders made on 9 December 2025, notwithstanding the belated delivery of written reasons on 23 December 2025”.

29    This ground appears to contain two parts, namely that:

(a)    the primary judge’s reasons are “perfunctory and conclusory in nature” and did not engage with the merits of the application, and as such “den[ied] the Appellants procedural fairness and the right to a fair hearing”; and

(b)    the primary judge’s delivery of written reasons on 23 December 2025 “caused the Appellants to file an initial Notice of Appeal without knowledge of the Court’s reasoning, causing significant procedural prejudice and undermining the Appellants’ statutory right to a meaningful appeal”.

30    As to the first point, Mr Natch appears to take issue with the primary judge’s observation at PJ [51] that:

[51]    Mr Natch’s submissions contained “a litany of allegations of misconduct by Stennson and its legal representatives, repetitive of allegations persistently made by Mr Natch throughout these proceedings. No basis has been established for any of the allegations and they are rejected.

31    Mr Natch submits that by this statement, which he says is “perfunctory and conclusory”, the primary judge failed to engage with the merits of his application. That is incorrect and must be rejected. The primary judge’s decision is some 18 pages long, and addresses each of the six allegations of fraud in sufficient detail. The judgment reveals a clear pathway of reasoning and, therefore, no error is established. Moreover, any brevity in his Honour’s reasons arise not from any perfunctoriness but, rather, because the absence of any merit in the several grounds of the application was somewhat obvious.

32    The second aspect of this ground must also be rejected. As Mr Natch has acknowledged, the delivery of judgment did not preclude him from filing his application for leave to appeal; indeed, it was already filed before the delivery of reasons. Further, and in any event, he was given leave to amend his application after the reasons were published. He has therefore suffered no prejudice.

Ground 2

33    The second ground asserts that the primary judge erred by failing to construe Stennson’s allegedly inconsistent pleadings as evidence of fraud, relying on the principles espoused in Edwards v The Queen (1993) 178 CLR 193.

34    The primary judge’s reasoning on this point was as follows:

[32]    Mr Natch’s second allegation does not give rise to an arguable claim of fraud. Mr Natch has not identified any information that was not already known by him at the time of the discontinuance of the proceeding. Stennson’s legal positions were pleaded in documents that were filed in the Court and that were known to the applicants. Parties are entitled to put claims made in litigation in the alternative, as legal and factual issues are often uncertain. This does not involve fraud. Again, it was open to the applicants to continue the litigation against Stennson, including by contesting the legitimacy of the alternative claims made, before Anastassiou J. The applicants’ decision to discontinue the proceeding was not the result of any fraudulent conduct associated with Stennson’s pleadings. The second allegation of fraud is baseless.

35    Mr Natch submits that the characterisation of the pleadings as alternative arguments was not advanced by Stennson at the hearing, but instead “supplied by the Primary Judge himself”. In that respect, he advances the following allegation:

By filling the evidentiary gaps left by the Respondents’ silence, the Judge effectively stepped into the role of a solicitor for the Respondent, thereby abandoning the role of an impartial fact-finder and denying the Appellant a fair hearing…

36    That is a most improper assertion and made without any basis. It is particularly egregious given that it is made against one of this Court’s most esteemed and respected judges, being one known for his undoubted fairness and impartiality. No error emerges from the primary judge’s reasoning. On the contrary, his Honour’s reasons for rejecting the allegation made was pellucidly correct. There was no inconsistency in the pleading.

Ground 3

37    By the third ground of appeal, Mr Natch asserts that the primary judge erred in dismissing his application under r 40.06 of the Rules. He submits that the primary judge incorrectly treated the findings made as to the allegations of fraud in respect of the application under r 39.05 as determinative of the application under r 40.06, and as such, failed to independently evaluate whether Stennson’s conduct met the lower standard of “improper, unreasonable or negligent”. This fails for two reasons.

38    Firstly, the Application purported to seek an order for costs against Stennson under r 40.06, which was defective, given r 40.06 concerns the disallowance of costs, rather than the making of costs orders. No order was sought before the primary judge disallowing certain costs incurred by Stennson.

39    Second, and in any event, the submission mischaracterises the application of r 40.06. The inquiry to which the rule is directed is not a wholesale evaluation of whether legal practitioners acted improperly, unreasonably or negligently in the conduct of proceedings. Rather, the question is whether certain costs have been incurred improperly, unreasonably or negligently by the party to the proceedings. Mr Natch did not point to any specific costs incurred by Stennson which ought to be disallowed. It follows that, taken at its highest, the submission is effectively that Stennson’s costs should have been disallowed in toto on the basis that they were incurred in connection with fraudulent conduct. Given the allegations of fraud were misconceived and properly rejected, there was no basis on which his Honour could have made such an order.

40    In those circumstances, in the absence of any submission that particular costs were incurred improperly, unreasonably or negligently by Stennson, no error emerges from the manner in which his Honour dealt with this aspect of the Application.

Ground 4

41    The fourth ground asserts that the primary judge misapplied Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165 (Clone), in that he “effectively re-impos[ed] a ‘due diligence’ requirement on the victim of fraud”.

42    His Honour considered Clone at [27] of his reasons:

[27]    At the hearing, Mr Natch placed considerable reliance on the finding by the plurality in Clone (at [2] and [63]-[68]) that it is not a precondition to the exercise of the power of a court to set aside a judgment that the party seeking to set aside the judgment exercised reasonable diligence to attempt to discover the fraud during the earlier proceedings. Mr Natch submitted that, consistently with Clone, he is not prevented from applying to the Court to set aside the Costs Order on the basis that it was obtained by fraud merely because Mr Natch, as the allegedly defrauded party, failed to exercise reasonable diligence to discover the fraud prior to that order being made. That submission may be accepted. But as explained below, the present case is not one in which there was any failure to discover fraud. Rather, no basis has been shown to allege fraud.

43    That reasoning is entirely orthodox. Though true it is that his Honour referred to various facts and documents being available to Mr Natch in the course of finding that no fraud had occurred, that does not have the effect of imposing any kind of requirement for him to undertake “due diligence”. The fraud was alleged to have been perpetrated through the pleadings and certain documents in the evidence. It was reasonable for the primary judge to assume that Mr Natch was aware of those matters, and observe that it was open to him to challenge them at the hearing rather than resolve the proceedings. The fact that the documents were available to Mr Natch strongly tends to negative the presence of fraud.

44    Again, Mr Natch has failed to establish any discernible error.

Ground 5

45    The fifth ground alleges that the primary judge erred by (a) failing to provide any reasons outlining the standard of proof applied, and (b) effectively requiring proof beyond reasonable doubt rather than on the balance of probabilities.

46    Both of these points can be rejected. The primary judge was under no obligation to expressly identify the balance of probabilities as the applicable standard of proof and nothing in his reasons suggests that any other standard was applied. His Honour simply found that there was no evidence at all to support Mr Natch’s allegations. There is no discernible error as to his Honour’s application of the relevant standard of proof.

Ground 6

47    By the sixth ground, Mr Natch asserts that the primary judge ought to have drawn an adverse inference against Stennson, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel). This ground also appears to re-agitate the question of whether Stennson’s allegedly inconsistent pleadings amounted to evidence of a fraud. To that extent, the reasons given with respect to ground 2 also apply here.

48    There was no basis on which the primary judge could have drawn any kind of Jones v Dunkel inference. Though true it is that Stennson did not adduce any evidence against the allegations of fraud put against it, Mr Natch nonetheless bore the onus of proving such that such fraud occurred. It is well established that a Jones v Dunkel inference cannot be used to remedy a deficiency in the evidence: see Jones v Dunkel 312. The primary judge found that Mr Natch’s claims were baseless and not supported by any evidence. That conclusion was undoubtedly correct and, that being so, the reluctance of Stennson to waste time and money in adducing evidence to rebut the unfounded allegation, was entirely understandable. In those circumstances, a Jones v Dunkel inference would have been inappropriate. No error is established.

Ground 7

49    By the seventh ground, Mr Natch asserts that: (1) the primary judge denied him procedural fairness by “thrusting the Appellants into a complex oral hearing on 9 December 2025 without permitting a written right of reply to the Respondents’ substantive dismissal application of 5 December 2025”; and (2) the primary judge erred by rejecting or dismissing his notice to admit.

50    As to the first point, that allegation refers to the written submissions filed by Stennson in response to Mr Natch’s application. No prejudice arises from his not being afforded the opportunity to file written submissions in reply. He was aware of Stennson’s position prior to the hearing of the application and could have made oral submissions on that which had been raised in writing. Moreover, Mr Natch did not seek to adjourn the hearing to file any further material.

51    It should be added that as the points sought to be advanced by Mr Natch were so bereft of merit, no amount of time would have enabled him to raise any valid arguments in support of them.

52    As to the second point, there is no error in the primary judge’s refusal to have regard to the notice to admit, for the reasons his Honour gave at PJ [14]:

[14]    At the hearing on 9 December 2025, Mr Natch sought to place reliance on a notice to admit dated 14 February 2025 that had been served by him on Stennson in the context of the taxation review. During the hearing of the taxation review, I ordered that the notice to admit be struck out for the reasons explained in Natch (No 4) at [33]. As a result, the notice to admit ceased to have any effect and could not be relied upon by Mr Natch at the hearing of the Application.

53    The earlier decision to strike out the notice to admit remains undisturbed. Again, the point sought to be advanced has no merit.

Ground 8

54    The eighth ground asserts that the primary judge erred in law by failing to find that Stennson’s conduct attracted the doctrine of illegality and the principle of “unclean hands”, such that it could not be entitled to any order as to costs.

55    That submission has no relevance to the application of r 39.05 of the Rules. Further, and in any event, it is inherently circular, in that Mr Natch effectively relies upon his unproven assertions as to Stennson’s conduct to justify setting aside the Costs Order. The eighth ground reveals no error.

Ground 9

56    The ninth ground asserts that the primary judge erred by dismissing Mr Natch’s application for leave to issue subpoenas to the director of Stennson, Mr Leon Mrocki, and its solicitor, Mr Darren Cain. He submits that this created an “impermissible procedural circularity” in circumstances where it was otherwise found that there was insufficient evidence to support the allegations made.

57    This ground of appeal identifies no error in the primary judge’s exercise of discretion. The primary judge was correct to dismiss the application for leave to issue the subpoenas on the basis that they were unnecessary, given they were sought in respect of allegations which were found to be “utterly baseless”. They represented no more than a fishing expedition and would have put Stennson to further unnecessary cost.

58    Yet again, there is no merit in this ground.

Ground 10

59    Ground 10 asserts that the primary judge erred by failing to find that the applicant had “established a prima facie case of fraud through uncontradicted evidence and deemed admissions, which shifted the evidentiary burden to the Respondent to provide a sworn explanation for the documented factual inconsistencies”.

60    That allegation is plainly wrong. Allegations of fraud must be proven by the moving party to the civil standard of proof as expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Further, and in any event, no prima facie case had been established, given his Honour found that the allegations were unsupported by any evidence. As such, no error is established.

Ground 11

61    The eleventh ground asserts that the primary judge erred in characterising the Application as vexatious and an abuse of process “without identifying any improper purpose or ulterior motive”.

62    That, again, is plainly wrong. His Honour found that the Application was “utterly baseless” and “involve[d] the use of the Court’s procedures to cause vexation and oppression to Stennson”: PJ [43]. That is a sufficient basis upon which to conclude that the Application was an abuse of process. As Kiefel CJ, Bell and Keane JJ observed in UBS AG v Tyne (2018) 265 CLR 77 at 83 [1]:

[1]    … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute…

63    It is clear from his Honour’s reasons that, in his view, the Application fell into both categories and, in the circumstances, the conclusion was undoubtedly correct.

64    No relevant error arises.

Ground 12

65    By ground 12, Mr Natch asserts that the primary judge erred in awarding indemnity costs without any evidence that Mr Natch knew the fraud allegations were false, and without considering his status as a self-represented litigant.

66    This allegation reveals no error which would cast doubt upon the exercise of discretion to award indemnity costs. His Honour awarded indemnity costs against Mr Natch on the basis that he unreasonably persisted in an application that was devoid of merit and prolonged the proceedings: PJ [46], citing Ogawa v University of Melbourne (No 2) [2004] FCA 1275 [48]. That was justified in circumstances where Mr Natch had already made several other applications to set aside the Costs Order, or otherwise prevent or delay its operation, each of which was unsuccessful (see supra [6] – [9]).

67    Moreover, his Honour clearly had regard to Mr Natch’s status as a litigant in person:

[47]    In determining whether costs should be awarded on an indemnity basis, I have had regard to Mr Natch’s status as a litigant in person. Despite that status, I consider that the Application is vexatious and an abuse of process justifying the award of indemnity costs.

68    The twelfth ground reveals no error.

Ground 13

69    By the thirteenth ground, Mr Natch asserts that the primary judge erred by failing to consider Stennson’s conduct before and during the proceedings in awarding costs, relying upon Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622. In particular, he submits that the primary judge failed to take into account: (a) the “mandatory requirements” of ss 11 and 12 of the Civil Dispute Resolution Act 2011 (Cth) (CDRA); (b) the failure of Stennson’s solicitor to adduce any evidence in response to the allegation as to a breach of s 9 of the CDRA; (c) the effect of r 40.04 of the Rules in relation to costs incurred “off the record”; and (d) Stennson’s overall conduct in the proceedings.

70    Sections 9, 11 and 12 of the CDRA provide as follows:

9 Duty of lawyers to advise people of the requirements of this Act

A lawyer acting for a person who is required to file a genuine steps statement must:

(a)    advise the person of the requirement; and

(b)    assist the person to comply with the requirement.

…

11 Court may have regard to genuine steps requirements in exercising powers and performing functions

An eligible court may, in performing functions or exercising powers in relation to civil proceedings before it, take account of the following:

(a)    whether a person who was required to file a genuine steps statement under Part 2 in the proceedings filed such a statement;

(b)    whether such a person took genuine steps to resolve the dispute.

12 Exercising discretion to award costs

(1)    In exercising a discretion to award costs in a civil proceeding in an eligible court, the court, Judge or other person exercising the discretion may take account of:

(a)    whether a person who was required to file a genuine steps statement under Part 2 in the proceedings filed such a statement; and

(b)    whether such a person took genuine steps to resolve the dispute.

(2)    In exercising a discretion to award costs in a civil proceeding in an eligible court, the court, Judge or other person exercising the discretion may take account of any failure by a lawyer to comply with the duty imposed by section 9.

(3)    If a lawyer is ordered to bear costs personally because of a failure to comply with section 9, the lawyer must not recover the costs from the lawyer’s client.

71    Though true it is that Stennson did not file a genuine steps statement in the proceedings, despite being required to do so under CDRA s 7, there is nothing mandatory about CDRA ss 11 and 12. The sections merely provide that the Court may have regard to a party’s failure to file a genuine steps statement when considering the question of costs, but there is no requirement to do so. It follows that the primary judge did not err in not explicitly addressing this point when awarding indemnity costs against Mr Natch.

72    To the above can be added that, from the circumstances of Mr Natch’s conduct of the litigation, a strong inference arises that the filing of a genuine steps notice would have made no difference to how the matter has proceeded. Mr Natch would have continued to pursue his meritless claims regardless.

73    As to the operation of r 40.04 of the Rules, this has been addressed with respect to ground 3. Otherwise, Mr Natch’s submissions do not raise any error which could be said to have infected the primary judge’s exercise of his discretion to award indemnity costs.

Ground 14

74    The fourteenth ground simply asserts that “the decision is attended by sufficient doubt to justify the grant of leave to appeal”. This is a mere invocation of the test in Decor, not supported by any submission identifying particular errors on the part of the primary judge. To the extent that it re-agitates the allegations made in the preceding grounds, it bears no merit for the reasons given above.

In any event, there is no substantial prejudice

75    Even if the foregoing conclusions are wrong, Mr Natch has not demonstrated substantial prejudice were leave refused. The decision under challenge concerned an interlocutory and discretionary application to set aside a costs order made in 2021. The proposed appeal does not concern the merits of that original order. Although refusal of leave will leave the Costs Order and the subsequent indemnity costs order undisturbed, those consequences are insufficient, in the circumstances of this case, to constitute substantial injustice warranting appellate intervention.

76    In particular, weight must be given to the finality principle and the repeated unsuccessful attempts which Mr Natch has made to set aside or otherwise interfere with the Costs Order. In this regard, one may have regard to the observations of Colvin J in Davies, in the matter of an application by Davies [2025] FCA 1552 at [5], which were invoked by the primary judge:

[5]    … The Court regards finality as fundamental to any civilised and just judicial system. The reasons for this were explained in Rogers v R (1994) 181 CLR 251 at 273 (Deane and Gaudron JJ). There is injustice if a party is required to litigate afresh matters which have already been determined by the courts. Decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct. Consequently, the circumstances in which the Court will reopen a case after a final hearing and appeal are very confined: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] – [36].

77    Therefore, the application for leave to appeal also fails on the second Decor criterion.

Conclusion

78    In the result, the application for leave to appeal must be dismissed. Mr Natch has failed to identify any error attenuating the primary judge’s decision, nor that he has suffered, or will suffer, substantial prejudice by reason of the decision.

79    For the reasons given by the primary judge at PJ [43] – [53], the circumstances of this case – namely, that the proceedings are utterly baseless, and thereby vexatious and an abuse of process – justify an award of indemnity costs in Stennson’s favour, to be fixed by the Court by way of lump sum.

Associate:    

Dated:    16 July 2026