Federal Court of Australia

Kastrioti v Australian Border Force (No 2) [2026] FCA 1042

ORDERS

THE COURT ORDERS THAT:

1.    The balance of the applicant’s interlocutory application dated 20 July 2026, being prayers 2 – 5 of that application, is dismissed.

2.    The applicant pay the respondents’ costs of his interlocutory application dated 20 July 2026.

3.    The parties have leave to file and serve short written submissions in relation to the making of the orders foreshadowed in paragraph 51 of these reasons for judgment by 4:00 pm on 10 August 2026.

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

REASONS FOR JUDGMENT

MOORE J

1    This is the second judgment in relation to the applicant’s interlocutory application dated 20 July 2026. It should be read with my first judgment, dealing with Mr Kastrioti’s application that I recuse myself from further dealing with this proceeding, being prayer 1 of that interlocutory application: Kastrioti v Australian Border Force & Ors [2026] FCA 1024 (First Judgment).

Background

2    The background to the present application is set out in the First Judgment. Defined terms in the First Judgment have the same meaning in this judgment.

3    Following the giving of the First Judgment ex tempore in the course of the hearing of the Interlocutory Application on 29 July 2026, which dealt with paragraph 1 of the Interlocutory Application, I proceeded to hear the balance of the Interlocutory Application that day.

4    Paragraph 2 of the Interlocutory Application seeks an order that the proceeding by stayed until determination of Mr Kastrioti’s appeal from my order declining to provide him with the transcripts of the case management hearings before Judicial Registrar Cody.

5    Paragraph 3 of the Interlocutory Application seeks an order that the matter be re-listed before a different judge (or the Full Court) for all future case management, interlocutory and substantive steps.

6    Paragraph 4 of the Interlocutory Application seeks an order that the Court “make directions for” the provision of:

(a)    the transcripts of the case management hearings before Judicial Registrar Cody on 13 November 2025, 20 February 2026 and 24 February 2026; and

(b)    the transcripts of “any other hearings necessary for the preparation of the Applicant’s submissions, amendments, interlocutory application and appeal”.

7    Paragraph 5 of the Interlocutory Application seeks what are described as “directions for proper case management”. Seventeen detailed directions are then set out. I will outline these below when dealing with each one.

8    Mr Kastrioti relies upon the same body of material as is identified in the First Judgment. Mr Kastrioti also made oral submissions, mostly consisting of reading out passages from the written materials.

9    The respondents did not make any submissions, other than indicating that they opposed the stay sought in prayer 2 of the Interlocutory Application, and stating that Mr Kastrioti had not justified that stay.

Consideration

Prayer 2

10    As noted above, prayer 2 of the Interlocutory Application seeks a stay of the proceedings pending Mr Kastrioti’s application for leave to appeal. As at the time of hearing, Mr Kastrioti’s application for leave to appeal my decision on 21 May 2026 had not yet been accepted for filing. Notwithstanding this, I proceeded on the basis that Mr Kastrioti intended to seek leave to appeal the ruling on transcripts dealt with at the case management hearing on 21 May 2026.

11    Mr Kastrioti claims that he requires the transcripts of the case management hearings for the further conduct of the present proceedings. If he is successful in obtaining leave to appeal and successful in any resulting appeal, he may obtain an order for the production of those transcripts. Ordinarily, such a consideration would be relevant to the grant of a stay, on the basis that a failure to order a stay may lead to the appeal being rendered nugatory.

12    However, the present circumstances are unusual. Mr Kastrioti has not articulated any use he could make of the transcripts, or how the transcripts of case management hearings at which orders were made that are now superseded could possibly be relevant to the ongoing conduct of the proceeding. At the hearing of the Interlocutory Application, I asked Mr Kastrioti to make any submissions he wanted to make addressing this particular question. Notwithstanding that express invitation, Mr Kastrioti did not make any submission directed to that question, and did not articulate any relevant use of the transcripts for the conduct of the proceedings or any relevant connection between the transcripts and any right or position of Mr Kastrioti. The closest the written material comes to articulating any connection between the transcripts and the conduct of the proceedings is the suggestion that the transcripts could be relevant to a recusal application against Judicial Registrar Cody. However, there is no forthcoming hearing listed before Judicial Registrar Cody. The matter is allocated to my docket and case management hearings are being conducted by me. If any future hearing was listed before Judicial Registrar Cody, then there might need to be consideration as to whether any such hearing should be stayed pending determination of Mr Kastrioti’s application for leave to appeal. However, that is not a basis for a blanket stay on the conduct of the proceeding before a Judge of the Court.

13    In those circumstances, I refuse the relief sought in Prayer 2 of the Interlocutory Application.

Prayer 3

14    An order falling within prayer 3 would only be made if I was to recuse myself. Otherwise, the proceeding having been docketed to me, I am obliged to continue dealing with the matter. As I have declined to recuse myself, it is not appropriate for me to make the order sought in paragraph 3 or any order falling within paragraph 3.

Prayer 4

15    Paragraph 4(a) has already been the subject of my ruling on 21 May 2026. Mr Kastrioti is seeking leave to appeal from that decision. No basis has been articulated for me to entertain a further application for the relief already refused by me. It is not, for example, suggested that any relevant circumstances have changed. I therefore decline to make the order sought in prayer 4(a) of the Interlocutory Application.

16    Paragraph 4(b) is the first of the prayers seeking “directions” on various matters. To some extent, these prayers involve a misunderstanding by Mr Kastrioti. Courts generally do not fetter their own discretion by making binding “directions” in advance of an issue arising as to what orders the Court will make or what approach the Court will adopt in a hypothetical future situation divorced from existing facts. Rather, judicial power is exercised in accordance with principles relevant to the particular circumstances as they arise from time to time.

17    Thus it would be inappropriate for the Court to make any binding direction in advance that transcripts will be provided to Mr Kastrioti in all cases, or any binding direction as to the circumstances in which such transcripts will be provided.

18    Rather, the Court will make arrangements for transcripts to be provided to Mr Kastrioti when the circumstances warrant that. In that regard, I note that Mr Kastrioti was provided with the transcript of the case management hearing on 21 May 2026, and will be provided with the transcript of the interlocutory hearing on 29 July 2026.

19    It would be quite inappropriate to make the order sought in prayer 4(b) of the Interlocutory Application and I decline to make that order.

Prayer 5

20    Paragraph 5 of the Interlocutory Application seeks 17 different types of “directions for proper case management”. These take the form of:

(a)    directions that seek to fetter the way in which the Court would exercise its case management direction on future occasions;

(b)    as a subset of (a), directions that seek to govern, and fetter, the way in which the Registry will deal with various Registry tasks in the future;

(c)    orders that the Court conduct a “judicial enquiry” into various matters; and

(d)    an order constituting an acknowledgment of the Court’s responsibility for delays.

21    The form of these orders reflects a misunderstanding by Mr Kastrioti of proper Court procedure. It would plainly be inappropriate to make any of these orders. I refer to them in more detail below.

22    That is not to say that a number of the matters raised by Mr Kastrioti in these proposed orders (e.g. disadvantages that Mr Kastrioti says that he experiences as a result of being in immigration detention) would not appropriately be taken into account in the making of particular case management orders. They are matters that Mr Kastrioti should raise at the appropriate time, such as in case management hearings when a timetable is being set.

23    Paragraph 5(a) of the Interlocutory Application seeks “directions for proper case management” in the form of “reasonable filing deadlines adjusted to account for the Applicant’s detention-based disadvantage”, further elaborated as concerning conditions with the detention centre, restricted computer room access hours, operational equipment delays (including ink shortages).

24    Again, this is an attempt to fetter the Court’s discretion in advance. No such “direction” could be made.

25    However, that does not mean that the Court will not take these matters into account in setting Court deadlines. If Mr Kastrioti needs extended deadlines, it may be appropriate to make allowance for this in orders made by the Court. It is for Mr Kastrioti to raise these matters at the time that deadlines are being set in procedural directions.

26    Paragraph 5(b) seeks a direction providing for “leave for the Applicant to lodge documents with the Court and serve parties via email during periods of restricted physical access”. It is not clear precisely what Mr Kastrioti seeks. There are existing provisions dealing with electronic filing. Documents may likewise be emailed to Chambers when it is necessary to provide Chambers with relevant documents.

27    Again, it would not be appropriate to make some vague and binding direction of general application to apply regardless of the particular circumstances of the case at the time when the issue arises.

28    Paragraph 5(c) seeks a “judicial inquiry into, and determination of, the causes of the non-issuance and administrative delay of transcripts by the Court Registry, the Judicial Registrar (Christine Cody), and any relevant judicial officer involved in the Applicant’s case”.

29    This may be dealt with shortly. The Court does not conduct “judicial inquiries”. Such an order would be entirely inappropriate. I decline to make such an order.

30    Paragraph 5(d) seeks directions for the filing of unsworn and uncertified documents. Again, it is not appropriate to fetter the Court in advance. It is frequently the case that a party who cannot file a sworn or certified document by a relevant deadline will serve an unsworn or uncertified copy and then seek an extension of time or other dispensation subsequently. That is a matter for Mr Kastrioti to raise at the relevant time, and for the Court to deal with at that time (such as permitting Mr Kastrioti to rely upon unsworn evidence, or permitting an extension of time for the provision of sworn evidence). Paragraph 5(d) is inappropriate to order, and I decline to order such relief.

31    Paragraph 5(e) proposes another judicial inquiry, this one being into the delay in sealing Mr Kastrioti’s s 78B notice. Again, the Court does not undertake judicial inquiries of this type, and I refuse the relief. It is also entirely pointless, given that it concerns a historical fact that does not affect the current position of Mr Kastrioti in any way.

32    Paragraph 5(f) seeks provision of the transcripts of the hearings before Judicial Registrar Cody. This is a duplication of paragraph 4(a), which I have dealt with above and is therefore refused. The balance of paragraph 5(f) is a duplication of paragraph 4(b), and is refused for the same reason.

33    Paragraph 5(g) seeks directions requiring the Court Registry to provide a written status report. Registries do not provide written status reports, and I decline to make such an order.

34    Paragraph 5(h) seeks directions requiring the Court Registry to accept all documents lodged by Mr Kastrioti via email “without rejection, bounce-back, or refusal, unless accompanied by written reasons identifying the legal basis for non-acceptance”. The Registry has established procedures. It would obviously be inappropriate for me to make a blanket order of this type varying those proper procedures, and I refuse the order.

35    Paragraph 5(i) seeks a direction requiring the Court Registry to acknowledge receipt of all documents lodged by Mr Kastrioti within 24 hours of email filing. This is inappropriate for the same reasons as paragraph 5(h), and I refuse this order.

36    Paragraph 5(j) seeks a direction requiring each respondent to acknowledge receipt of all documents lodged by Mr Kastrioti within 24 hours of receipt. There is no requirement that the respondents acknowledge receipt of documents served on them. However, if Mr Kastrioti asks for such an acknowledgement, common courtesy would dictate that it be communicated. There is no reason for me to make the order sought.

37    Paragraph 5(k) seeks a direction preventing the respondents from relying on any document not first provided to Mr Kastrioti, with confirmation of service. This direction is pointless. As a matter of ordinary practice, the respondents will need to provide notice to Mr Kastrioti of documents on which they rely. There is no need for Mr Kastrioti to confirm service. I decline to make an order in this form.

38    Paragraph 5(l) seeks a direction that the Court provide Mr Kastrioti with a copy of any order made within 24 hours of issuance. Again, such a binding procedural direction is inappropriate, but Mr Kastrioti will promptly be provided with orders made by the Court in any event.

39    Paragraph 5(m) seeks a direction that the Court provide Mr Kastrioti with written reasons for any refusal, delay or limitation on transcript access. Such a direction seeks to fetter the discretion of the Court, and require a procedural step that may or may not be appropriate in a given case. It is therefore inappropriate and I decline to make such an order.

40    Paragraph 5(n) seeks a direction requiring preservation and non-destruction of all audio recordings of hearings until final determination of Mr Kastrioti’s appeal and interlocutory applications. This will almost certainly occur in any event, but it is plainly inappropriate to make such an order.

41    Paragraph 5(o) seeks a direction permitting Mr Kastrioti to access audio recordings of hearings if transcripts are delayed beyond 14 days. Again, this order seeks inappropriately to fetter the Court’s discretion and I decline to make it. If Mr Kastrioti seeks to access audio recordings, then any application to that effect should be brought at an appropriate time and in appropriate circumstances.

42    Paragraph 5(p) seeks a direction that the Court provide Mr Kastrioti with a complete copy of the Court file. Mr Kastrioti has appropriate access under existing provisions. No reason has been identified for the making of such an order, and I decline to make it.

43    Paragraph 5(q) seeks “directions acknowledging that the delay in JP certification, detention-based disadvantage (the conditions within the immigration detention centre, and restricted access to facilities), transcript non-issuance, and the sealing and processing of the Applicant’s filings… were not caused by the Applicant, and requiring judicial intervention to address and rectify these administrative and procedural delays [as set out in Mr Kastrioti’s affidavits]”. There is no basis for the Court making an order that constitutes some form of declaration that Mr Kastrioti is not responsible for delays, or a vague order that there be judicial intervention to address and rectify alleged delays. The order is in a wholly inappropriate form, and I decline to make it.

Conclusion

44    Mr Kastrioti is not entitled to any of the relief sought in the Interlocutory Application, and the Interlocutory Application should be dismissed, with costs.

Further conduct of the proceeding

45    The substantive issues in the proceedings have not progressed while the parties and the Court have been concerning themselves with Mr Kastrioti’s challenge to procedural matters.

46    Prior to 25 February 2026, Mr Kastrioti had foreshadowed that he wished to apply for leave to amend his current originating application, which was itself an amended originating application. The first and second respondents had foreshadowed that they wished to bring an application for summary dismissal of the proceedings. The third respondent had foreshadowed that it wished to bring an application to substitute a different entity as the third respondent. Consequently, on 25 February 2026, I made the following orders:

1.     By 30 March 2026, the applicant, by email, notify the respondents and the Court (by email to the Registry) as to whether he wishes to proceed with his application.

2.    By 30 March 2026, the applicant file and serve any interlocutory application for leave to amend his originating application, together with any supporting affidavit and any written submissions. By the same date, the applicant is to serve:

(a)    that interlocutory application;

(b)    the proposed Further Amended Originating Application;

(c)    any affidavit in support; and

(d)    any written submissions in support, on the respondents and provide copies to the Court (by email to the Registry).

3.     By 20 April 2026, the respondents file and serve any interlocutory application(s), together with any supporting affidavit and any written submissions, and provide copies to the Court (by email to the Registry).

4.     The proceeding and any interlocutory applications filed pursuant to these orders be listed for a case management hearing only before Moore J on 29 April 2026 at 9:30 am.

47    Mr Kastrioti did not file any interlocutory application pursuant to order 2 of those orders. That affected the position of the respondents in relation to their applications, because any application for summary dismissal requires a final form of the originating application, and any application to substitute an entity would be affected by whether Mr Kastrioti seeks to change the identity of the third respondent to the proceeding.

48    At the case management hearing on 21 May 2026, Mr Kastrioti informed the Court that he had been unable to comply with the orders of 25 February 2026 because he did not have the transcripts from the case management hearings before Judicial Registrar Cody on 13 November 2025, 20 February 2026 and 24 February 2026. Mr Kastrioti has been unable to provide any coherent explanation for why he needs those transcripts (which deal with the making of case management orders that were superseded by my orders of 25 February 2026) for the purposes of preparing any application to further amend his originating application, or to prepare any affidavit or submissions in support of that application.

49    Following the case management hearing on 21 May 2026, I made the following relevant orders:

1.    The time for the applicant to file and serve on the respondents and provide copies to the Court (by email to the Registry) any interlocutory application for leave to amend his originating application, together with a copy of any proposed further amended originating application, any supporting affidavit and any written submissions, pursuant to Order 2 of the orders dated 25 February 2026 (Orders), be extended to 11 June 2026.

2.    The time for the respondents to file and serve any interlocutory application(s), together with any supporting affidavit and any written submissions, and provide copies to the Court (by email to the Registry), pursuant to Order 3 of the Orders, be extended to 2 July 2026.

50    No material falling within order 1 above has been filed by Mr Kastrioti. Instead, Mr Kastrioti filed the Interlocutory Application, which included his application that I recuse myself and his application for a stay of the proceeding.

51    Having disposed of the Interlocutory Application, it is appropriate that the proceeding continues without further delay. Five months have gone by since my orders of 25 February 2026. I propose to order that if, by 24 August 2026, Mr Kastrioti has not filed and served any interlocutory application for leave to amend his originating application, together with a copy of any proposed further amended originating application, any supporting affidavit and any written submissions, then:

(a)    the proceeding will continue on the basis of the existing amended originating application for judicial review dated 12 December 2025; and

(b)    there will be an extension until 7 September 2026 for the respondents to file and serve any interlocutory application(s), together with any supporting affidavit and any written submissions, and provide copies to the Court (by email to the Registry).

52    However, I have not had the opportunity to hear from the parties in relation to these proposed orders. I will therefore make an order that any short written submission from any party in relation to the making of the orders foreshadowed in paragraph 51 above be filed and served and emailed to my chambers by 4:00 pm on 10 August 2026.

Associate:

Dated:    3 August 2026