Federal Court of Australia

Plaintiff S111A/2018 v Commonwealth of Australia (Costs) [2026] FCA 1075

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to pay the respondent’s costs of the applicant’s interlocutory application (dated 17 November 2025), including costs thrown away, on an indemnity basis.

2.    The applicant is to pay the respondent’s costs of the respondent’s interlocutory application (dated 4 June 2026) incurred to date on an indemnity basis.

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

REASONS FOR JUDGMENT

LENEHAN J:

1.    INTRODUCTION

1    At the interlocutory hearing before me on 17 July 2026, counsel for both parties made oral submissions concerning the applicant’s interlocutory application dated 17 November 2025 (applicant’s interlocutory application), the respondent’s interlocutory application dated 4 June 2026 (respondent’s interlocutory application), and the question of costs arising from those applications. Following the hearing, the Court made orders in these terms:

THE COURT ORDERS, BY CONSENT, THAT:

1.    The applicant’s interlocutory application dated 17 November 2025 be dismissed.

2.    By 4:00pm on Friday, 7 August 2026, the applicant is to file and serve an application for leave to amend, together with the proposed amended statement of claim and short submissions in support of no more than five pages.

THE COURT ORDERS THAT:

3.    In default of compliance with order 2 above, the proceeding be dismissed with costs.

4.    The respondent’s interlocutory application dated 4 June 2026 be stood over to a case management hearing at 11:30AM AEST (9:30 AWST) on Friday, 14 August 2026.

2    As a result of those orders, the only matters remaining for determination are the questions of costs arising from the two interlocutory applications. For the reasons set out below, the applicant must pay the respondent’s costs of the applicant’s interlocutory application, including costs thrown away, on an indemnity basis, and the respondent’s costs of the respondent’s interlocutory application incurred to date on an indemnity basis.

2.    LEGAL PRINCIPLES

3    The legal principles governing an award of indemnity costs are well-established and were not in dispute at the hearing before me. Nevertheless, it is appropriate to briefly summarise them.

4    In Puxty v Monarch Advisory Group Pty Ltd (Costs) [2023] FCA 650, Thawley J described the nature of the Court’s power to award indemnity costs in these terms at [9]:

The Court has a broad discretion to order costs: s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The Court must interpret and apply civil practice and procedure provisions in a way that best promotes the overarching purpose set out in ss 37M(1) – see: 37M(3) of the FCA Act.

5    In Federal Commissioner of Taxation v Rawson Finances Pty Ltd (Costs) (2024) 301 FCR 365, Perry J described the general principles on indemnity costs in these terms at [12]:

This Court has a broad discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth): Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 at [20] (Logan, Griffiths and Perry JJ). That discretion includes power to order that costs be paid on an indemnity, rather than a party/party, basis: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive) at 232-233 (Sheppard J).

The ordinary rule is that a party is entitled to costs on a party/party basis only. However, the ordinary rule may be departed from where there is “some special or unusual feature in the case to justify the Court in departing from the ordinary practice”: Colgate-Palmolive at 233 (Sheppard J). That said, as the applicant submits, references in the cases to general rules or ordinary practices for the award of costs should not be understood as fettering the discretionary nature of such decisions: GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263 at [20] Bryson JA at [20] [sic] (with whose reasons Hodgson and Santow JJA agreed at [1] and [2]). Thus, the “categories in which the discretion may be exercised are not closed”: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225 at [8] (French J). “The question”, as Sheppard J explained in Colgate-Palmolive at 234, “must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”.

(Emphasis added in bold.)

6    The authorities further recognise that certain (mis)conduct, including conduct properly characterised as “delinquency in the conduct of the proceedings” may, depending on the particular facts, justify an award of indemnity costs: see eg Harrison v Schipp [2001] NSWCA 13 at [136] (Giles JA, Handley JA agreeing at [1]).

7    In Re Beverage Freight Services Pty Ltd [2020] NSWSC 509, Black J said this at [73]:

The jurisdiction to order costs is compensatory and not punitive and whether an indemnity costs order should be made depends, at least in part, on whether there was a relevant delinquency on the part of the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 89. The relevant principles were also considered by the Court of Appeal in Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6] where the Court observed that an order for indemnity costs may be made where conduct in proceedings is plainly unreasonable or involves an element of delinquency.

(Emphasis added in bold.)

8    To similar effect, in Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792, Kenny J said this at [42]:

A court may award indemnity costs in respect of misconduct which causes loss of time to the Court and to other parties: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, WAG 55 of 1988, 3 May 1991 unreported) referred to with approval in Colgate-Palmolive at 233; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] per Harper J. As Mason P, with whom Meagher and Clarke JJA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, “the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation” before departing from the usual party and party costs order. The procedural history provides sufficient evidence of unreasonable conduct on the part of Mr Armitage, through his legal representatives or personally, to continue to justify an indemnity costs order on Ms Wu’s motion.

(Emphasis added in bold.)

9    The identification of “delinquency” or “misconduct” as a basis for ordering indemnity costs is not in tension with the notion that costs orders are compensatory, not punitive. That was explained by Gummow and Gaudron JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 [44] in this way (in the passage to which Black J referred in Re Beverage Freight Services Pty Ltd):

It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.

(Emphasis added in bold.)

10    I now turn to consider whether the applicant’s conduct in these proceedings amounts to the kind of “delinquency in the conduct of the proceedings” that justifies an award of indemnity costs in respect of the two interlocutory applications.

3.    APPLICANT’S NON-COMPLIANCE WITH THE COURT’S ORDERS

11    This matter has an unfortunate history of non-compliance by the applicant with orders made by this Court in respect of his interlocutory application for leave to amend the statement of claim. That unfortunate history is apparent from the following brief summary of the events leading up to the interlocutory hearing before me on 17 July 2026.

12    Order 1 of the orders made by Raper J on 14 April 2025 provided that:

THE COURT ORDERS BY CONSENT THAT:

1.    By 4.00pm on 23 May 2025, the applicant is to serve a draft amended statement of claim on the respondent (Draft ASOC).

13    The applicant failed to comply with that order (the first instance of non-compliance). According to the respondent’s solicitor, the Draft ASOC had not been served by the date of the case management hearing on 18 July 2025.

14    Raper J then made orders on 18 July 2025. Order 1 of those orders provided that:

THE COURT ORDERS THAT:

1.    By 4.00pm on 15 August 2025, the applicant is to serve a draft amended statement of claim on the respondent (Draft ASOC).

15    That order was not complied with either (the second instance of non-compliance).

16    On 21 October 2025, the applicant (finally) served a Draft ASOC to the respondent.

17    Order 1 of orders made by Raper J on 22 October 2025 provided that:

THE COURT ORDERS BY CONSENT THAT:

1.    By 4.00pm on 31 October 2025, the respondent is to notify the applicant and the Court whether it consents to an order granting the applicant leave to file the draft amended statement of claim (Draft ASOC) that was served on the [respondent] on 21 October 2025.

18    In accordance with those orders, on 31 October 2025, the respondent notified the applicant and the Court that it did not consent to an order granting leave to file the Draft ASOC.

19    It was thus necessary to make timetabling orders for the hearing of any interlocutory application to deal with that proposed amendment. To that end, orders 1 and 2 of the orders made by Raper J on 7 November 2025 provided that:

THE COURT ORDERS THAT:

1.    By 4.00pm on 17 November 2025, the applicant is to file any application seeking leave to amend the Statement of Claim dated 30 July 2024 together with any supporting affidavit.

2.    If the applicant files an application seeking leave to amend the Statement of Claim dated 30 July 2024 in accordance with order 1 above:

a.    By 4pm on 17 November 2025, the applicant is to file and serve submissions of no more than 5 pages.

b.    By 4.00pm on 1 December 2025, the respondent is to file submissions in response of no more than 5 pages and any affidavit.

c.    By 4.00pm on 8 December 2025, the applicant is to file any submissions in reply of no more than 3 pages.

d.    The application be listed for hearing on a date to be fixed.

20    At 3:58pm on 17 November 2025, the applicant lodged an interlocutory application, seeking leave to amend the Statement of Claim dated 30 July 2024, together with a supporting affidavit. The applicant did not, however, on or before this date, file any submissions in support of his interlocutory application (cf order 2(a) of the orders made by Raper J on 7 November 2025) (the third instance of non-compliance).

21    This proceeding was later docketed to me on 16 February 2026, at which point the applicant had still not complied with order 2(a) of the orders of 7 November 2025.

22    On 11 March 2026, at which point the applicant had still not complied with order 2(a) of the orders of 7 November 2025, the respondent lodged written submissions and affidavit evidence in response to the applicant’s interlocutory application.

23    Order 1 of the orders made by me on 24 March 2026 provided, by consent, that:

THE COURT ORDERS, BY CONSENT, THAT:

1.    By 4:00pm on 23 April 2026, the applicant is to file and serve submissions of no more than 5 pages in support of his interlocutory application dated 17 November 2025.

24    Notation A of those consent orders provided that:

THE COURT NOTES, BY CONSENT, THAT:

A.    If the applicant does not comply with Order 1 of the Court’s Orders, the respondent may apply for the proceeding to be dismissed under s 37P(6) of the Federal Court of Australia Act 1976 (Cth) and/or r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) for repeated and unexplained non-compliance with the Court’s orders.

25    At 4:24pm on 27 March 2026, the Court emailed the parties in the following terms:

The hearing of the applicant’s interlocutory application (dated 17 November 2025) has been listed for 10:15am on Friday, 17 July 2026 (for an estimate of 3 hours).

Please confirm receipt of this email.

26    At 4:31pm on 27 March 2026, the respondent confirmed receipt of that email.

27    As of 2 June 2026, the applicant had still not confirmed receipt of that email or filed any submissions in support of his interlocutory application of 17 November 2025 (the fourth instance of non-compliance).

28    Accordingly, at 2:05pm on 2 June 2026, the Court emailed the parties in the following terms:

Order 1 of the Court’s Orders dated 24 March 2026 required the applicant to file and serve submissions of no more than 5 pages in support of his interlocutory application [dated] 17 November 2025 by 4:00 pm on 23 April 2026.

As of today, 2 June 2026, the Court has not yet received these submissions and accordingly the applicant is in significant default of this Order.

The Court notes that under heading A. of those same Orders, the respondent may apply for the proceeding to be dismissed under s 37P(6) of the Federal Court of Australia Act 1976 (Cth) and/or r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) if the applicant does not comply with Order 1 mentioned above.

The Court invites either party to address the matters raised above.

29    At 2:46pm on 3 June 2026, the applicant’s solicitor emailed the Court (copying in the respondent) in the following terms:

I am currently in discussions with new Counsel and will be able to provide a response tomorrow in respect of the Applicant’s submissions and your email below.

I have had difficulty with securing Counsel on basis of my client is not in funds.

The Respondent has been provided this correspondence in advance

30    Despite indicating a further response would be provided “tomorrow”, the applicant’s solicitor did not provide any further response to my Chambers.

31    On 4 June 2026, the respondent filed an interlocutory application, seeking that the proceeding be dismissed for the applicant’s non-compliance with the Court’s orders. On the same day, the respondent also filed an affidavit of its solicitor, Stephen Bott, sworn on 4 June 2026 (Mr Bott’s affidavit).

32    I then made orders timetabling the respondent’s interlocutory application for hearing. Order 1 of the orders made by me on 30 June 2026 provided that:

THE COURT ORDERS THAT:

(1)    In respect of the respondent’s interlocutory application filed on 4 June 2026:

a.    The respondent is to file and serve written submissions by 4:00 pm on Monday, 6 July 2026.

b.    The applicant is to file and serve written submissions by 4:00 pm on Monday, 13 July 2026.

c.    The matter is to be heard during the interlocutory hearing listed at 10:15 am on Friday, 17 July 2026.

33    On 6 July 2026, in accordance with order (1)(a) of the orders made on 30 June 2026, the respondent filed written submissions in support of its interlocutory application.

34    On 14 July 2026, one day after the date provided for by order (1)(b) of the orders made on 30 June 2026, the applicant filed written submissions in response to the respondent’s interlocutory application (the applicant’s written submissions) and an affidavit sworn by the applicant’s solicitor, Zali Burrows, on 14 July 2026 (Ms Burrows’ affidavit).

35    Relevantly, the applicant’s written submissions (at [12]), and Ms Burrows’ affidavit (at [40]), advised the Court that the applicant no longer presses his interlocutory application of 17 November 2025. Reflecting that position, the applicant’s written submissions stated at [16]:

The applicant therefore proposes orders to the following effect:

(a)    the applicant’s interlocutory application dated 17 November 2025 be dismissed, the applicant not pressing it;

(b)    within 21 days, the applicant file and serve any application for leave to amend, together with the proposed amended statement of claim and short submissions in support;

(c)    the costs of the applicant’s interlocutory application dated 17 November 2025, and the costs thrown away by the amendment, be costs in the cause; and

(d)    the costs of the respondent’s interlocutory application dated 4 June 2026 be costs in the cause.

36    At this juncture, it is worth noting that this was the first time the respondent was notified of the applicant’s decision to no longer press his interlocutory application. That notification was provided approximately eight months after the applicant’s interlocutory application was filed and three days before the hearing of the respondent’s interlocutory application.

4.    APPLICANT’S UNSATISFACTORY EXPLANATION FOR HIS NON-COMPLIANCE WITH THE COURT’S ORDERS

37    Ms Burrows’ affidavit attempts to explain the applicant’s non-compliance with the Court’s orders. I briefly consider some of the (unsatisfactory) explanations proffered by the applicant.

38    First, much is said in Ms Burrows’ affidavit about the respondent’s lack of compliance with the Court’s orders in related proceedings.

(1)    According to Ms Burrows, numerous counsel agreed to be briefed on an unpaid basis in respect of other proceedings the applicant brought against the Minister for Home Affairs, the Commonwealth and the Director-General of Security, and a costs order was made in favour of the applicant in these related proceedings (at [6]-[18]). In this regard, Ms Burrows deposes at paragraphs [10]-[12]:

On 23 May 2022, costs orders were made by Mortimer J in proceeding NSD584/2019:

1.    Subject to order 2 below:

a.    the respondents pay the applicant's costs of and incidental to the com­mencement of the proceeding in the High Court on 17 April 2018, and pay the applicant's costs of the proceeding up until 16 May 2019, to be fixed by way of a lump sum; and

b.    the respondents pay the applicant's costs of the proceeding, from 29 October 2020, to be fixed by way of a lump sum.

2.    The respondents must pay only 70% of the applicant's lump sum costs re­ferred to in order 1(b), but must pay all of the applicant's lump sum costs referred to in order 1 (a).

A copy of the Costs order dated 23 May 2022 is marked "ZB 1"

The Commonwealth parties appealed, and no costs were recovered.

(Emphasis added in bold.)

(2)    However, according to Ms Burrows, the respondent did not comply with the Court’s costs order made in respect of these proceedings. In this regard, Ms Burrows deposes at paragraph [19]:

On 20 November 2023, I sent the Australian Government Solicitor invoices for the costs thrown away by the vacation of the hearing: $11,550.00 for [Counsel 1] SC, $9,196.00 for [Counsel 2] and $5,500.00 for my firm. Despite my requests, those invoices have not been paid. To date, [Counsel 1] SC, [Counsel 2] and I have not been paid for the vacated special leave hearing. A copy of my email of 20 November 2023 requesting payment, and the AGS response of the same day, is marked annexure "2B3". Copies of the three invoices are marked annexure "2B6".

(Emphasis added in bold.)

(3)    According to Ms Burrows, the respondent’s failure to comply with the Court’s costs orders (made in respect of these related proceedings) has made it difficult to brief counsel. In this regard, for example, Ms Burrows deposes at [26] and [33]:

From this point onwards I was without counsel. I did not feel able to return to [Counsel 1] SC, because I was embarrassed that his invoice for the vacated special leave hearing of 13 October 2023 remained unpaid.

…

When seeking counsel, I have explained the history of the proceedings, including that costs awarded or claimed at earlier stages have not been paid. Since 2018 I have personally funded disbursements, including printing. In my experience, these matters have made the brief difficult to place.

(Emphasis added in bold.)

39    Accepting Ms Burrows’ evidence at face value, I am led to believe, as the respondent put it, “that the Commonwealth hasn’t paid costs which are owed to the applicant”. In this regard, I respectfully reject Ms Rubagotti’s oral submission that, “[W]e say … all [paragraph 19] states is that amounts were indicated, they were never paid and documents were annexed”. As I explained to Ms Rubagotti during the hearing, the impression left by Ms Burrows’ affidavit is that there existed a series of unpaid costs orders in the applicant’s favour and that this represented “the end of the story”.

40    However, at the hearing before me, the respondent contended (correctly) that paragraph [19] of Ms Burrows’ affidavit provided only a “partial” account of the relevant history, emphasising the following matters in support of that contention.

(1)    The respondent referred to page 29 of its tender bundle, which contains an order of the High Court of Australia, refusing the applicant’s application for special leave to appeal from the judgment and orders of the Full Court of the Federal Court of Australia given and made on 9 March 2023, “with costs”. In this regard, the respondent submitted that, even if an earlier costs order had been made in the applicant’s favour (by Mortimer J), the costs subsequently ordered against the applicant were likely to have been “significantly larger” than any amount recoverable under that order.

(2)    The respondent further submitted that Ms Burrows’ affidavit “doesn’t mention” the High Court’s costs order against the applicant, as well as “the various other costs orders incurred against the applicant in favour of the Commonwealth in other proceedings”. For example, Ms Burrows’ affidavit “doesn’t mention” an order of the Full Court of this Court made on 30 May 2023, allowing an appeal brought, among others, by the Commonwealth, and ordering the applicant pay the Commonwealth parties’ costs.

(3)    The respondent also referred to page 10 of its tender bundle, which contains an email sent at 8:58am on 22 November 2023 in response to the email referred to by Ms Burrows at [19] of her affidavit. As the respondent submitted, that email response was not mentioned in Ms Burrows’ affidavit. For completeness, I note that the applicant handed up a further email sent by Ms Burrows at 10:18pm later that day in response to the respondent’s email. According to the respondent, that email was not able to be located on its systems. The respondent nevertheless submitted that the significance of the exchange was not where the matter ultimately concluded (which remained unclear) but, rather, that “on any view, what was said in that paragraph of the affidavit was a partial version of the story”.

41    I accept the respondent’s submission that “the picture” painted by Ms Burrows, especially at paragraph [19] of her affidavit, did not present “the full story”. At the same time, I accept that I am unable to make any finding as to how the email exchange referred to at subparagraph (3) ultimately concluded. Given the state of the evidence concerning that issue, I cannot be satisfied that the applicant’s explanation for his non-compliance, founded upon costs orders made in related proceedings (costs orders which appear to have been plainly overtaken by subsequent events), should be accepted.

42    Second, much is made in Ms Burrows’ affidavit and the applicant’s written submissions around the difficulties said to have arisen from the absence, or limited availability, of counsel.

(1)    For example, at [25], [28], [31] and [32] of her affidavit, Ms Burrows deposes:

Shortly afterwards, [Counsel 2] ceased to be available, and I was again without counsel. I made numerous enquiries of counsel known to me.

…

I made my best endeavours to find counsel, asking several barristers whether they, or anyone known to them, would accept a brief in the matter on an unpaid basis. I do not wish to name those barristers.

…

On 9 September 2025, I wrote to the Respondent to advise that I was still seeking Counsel to review the proposed amended statement of claim.

On or around 16 October 2025, [Counsel 2] indicated that he would assist me by reviewing the draft proposed amended statement of claim. I was subject to his availability, given his existing professional commitments and that this matter was unpaid.

(2)    For example, at paragraph [9] of his written submissions, the applicant says:

[T]he applicant was without counsel for much of the relevant period, a matter recorded in the respondent’s own evidence: the applicant’s solicitor advised the respondent on 14 August 2025 that she was without counsel and attending to the task herself (affidavit of Stephen Bott sworn 4 June 2026, [19], SGB-3); on 10 December 2025 that counsel then briefed was engaged in another complex matter (Bott affidavit, [58], SGB-21); on 24 March 2026 that she was in the process of retaining new counsel (Bott affidavit, [70], SGB- 29); and on 3 June 2026 that she was in discussions with new counsel, who has since been briefed and appears on this application (Bott affidavit, [74], SGB-31). The solicitor’s affidavit answers RS [23] and RS [26]: the defaults arose from the difficulty of briefing counsel in an unfunded matter, not from any want of engagement by the applicant. The difficulty was compounded by the non-payment, despite an instructed agreement communicated to the High Court on 13 October 2023, of the costs of the vacated special leave hearing (solicitor’s affidavit, annexures ZB2, ZB3 and ZB6), in a matter conducted unfunded against a represented Commonwealth.

43    Even if I accept that the applicant may have encountered real difficulties securing counsel, the evidence does not satisfactorily explain how those difficulties caused the repeated defaults identified above. Several of the defaults concerned, as Ms Rubagotti accepted, failures to communicate with the respondent and the Court, or failures to seek timely extensions of time. Those matters did not depend on counsel being available.

44    Third, aspects of Ms Burrows’ affidavit do not appear to accord with the contemporaneous documentary record. In particular, the respondent drew attention to these discrepancies.

(1)    There appear to be inconsistent accounts as to who Ms Burrows intended to brief. For example, in an email sent to the respondent’s solicitor at 11:36am on 14 October 2025, Ms Burrows stated that “Mr Geoff Foster is briefed now and ASOC will be served to you by Friday this week”. In a further email sent at 12:32pm on 16 October 2025, Ms Burrows stated that “Mr Foster … will be able to complete by this weekend given his commitments”. By contrast, at paragraph [32] of her affidavit, Ms Burrows deposes that: “On or around 16 October 2025, Mr Ward indicated that he would assist me by reviewing the draft proposed amended statement of claim”. As the respondent correctly submitted, “Mr Foster is not mentioned at all in Ms Burrows’ affidavit and conversely Mr Ward is not mentioned in these emails”.

(2)    There also appear to be inconsistent accounts as to when submissions were expected to be filed. At paragraph [35], Ms Burrows deposes that: “On 17 November 2025, I filed and served an interlocutory application for leave to amend, with an affidavit … I did not provide submissions in support at that time, as I hoped that counsel would settle them”. However, in an email sent to the respondent’s solicitor at 10:31am on 18 November 2025, Ms Burrows stated that: “The outline of submissions are expected to [be] filed by tomorrow or 20 November 2025”. As the respondent submitted, it is difficult to reconcile that statement with the account given in Ms Burrows’ affidavit.

45    Those inconsistencies – which leave certain matters, as the respondent (aptly) put it, “entirely unclear” – make it difficult to accept the applicant’s explanation at the level of generality at which it is advanced. While the Court may have some (limited) sympathy for the applicant’s circumstances, the explanations advanced by the applicant do not adequately account for the serious and repeated instances of non-compliance that eventually prompted the respondent to file its interlocutory application. Nor do they explain the lack of timely communication with the respondent (and, on some occasions, with this Court). In this regard, Ms Rubagotti accepted that there had “not been complete communication with the Court”. I therefore place little weight on the applicant’s reliance on the absence or limited availability of counsel as an explanation for his repeated non-compliance with this Court’s orders.

46    Fourth, much is said in Ms Burrows’ affidavit (as well as the applicant’s written submissions) about the significance of the High Court’s recent decision, Abdel-Hady v Commonwealth of Australia [2026] HCA 17, to these proceedings.

(1)    At paragraphs [30], [39] and [40] of her affidavit, Ms Burrows relevantly deposes:

I was not aware that Abdel-Hady v Commonwealth of Australia (S65/2021) was pending before the High Court, and the respondent did not advise me that it was on foot, notwithstanding its relevance to the Applicant’s case.

…

On 3 June 2026, I advised the Court that I was in discussions with new counsel. On 10 June 2026, the High Court delivered judgment in Abdel-Hady v Commonwealth of Australia [2026] HCA 17.

…

The Applicant will be in a position to file and serve his proposed amended statement of claim, in the confined form described in his submissions, within a short period. The Applicant will not press his interlocutory application of 17 November 2025, and the fresh pleading will take account of Abdel-Hady v Commonwealth of Australia [2026] HCA 17.

(2)    At paragraphs [8] and [10] of his written submissions, for example, the applicant says:

[C]ompliance with the timetable would not have avoided the need for amendment: Abdel-Hady was delivered on 10 June 2026, after every date fixed by the orders of 14 April 2025, 7 November 2025 and 24 March 2026 had passed, so a pleading and submissions filed in strict compliance with those orders would have required revision within weeks in any event, and no hearing date was lost in the meantime.

…

[T]he respondent’s conduct in relation to pending High Court authority also bears on the weight of its complaints. When pending decisions stood to assist it, it acted: on 2 September 2024, a week before its defence fell due, it sought the vacation of the timetable by reference to BOE21 v Commonwealth [2024] FCA 709, and the proceeding was then adjourned by consent for six months pending CZA19 and DBD24. The respondent was meanwhile the defendant in Abdel-Hady, in which the Commonwealth propounded, as a test for claims of this kind, the very defence it would require in this proceeding; yet it did not suggest that this proceeding await that decision, its submissions of 11 March 2026 made no reference to the case then reserved, and it filed the present application six days before judgment was delivered. That course was open to it, but it sits uneasily with its position as a model litigant, and it deprives its complaints of delay of much of their force.

47    I am not persuaded that Abdel-Hady provides an adequate explanation for the applicant’s (repeated) non-compliance. As Ms Rubagotti accepted during the hearing, Abdel-Hady concerns (chiefly) the respondent’s defence: Abdel-Hady [2026] HCA 17 at [6]. The applicant’s history of non-compliance meant that the occasion for the filing of that document is yet to arise. In those circumstances, it is difficult to see how the pending determination of that proceeding could have prevented the applicant from pleading his own case or otherwise complying with this Court’s orders.

48    As to the suggestion that Abdel-Hady “would have impacted…the filing of the pleadings in this case and the progress of th[is] case before this Court”, it is not clear that that would have been so. Had the applicant complied with the timetable and had the Commonwealth pleaded that defence, the parties may or may not have sought to adjourn this matter to await the outcome. That defence (had it been recognised) involved a discrete point: Abdel-Hady [2026] HCA 17 at [19]. Its determination was unlikely to involve much (if any) evidence in addition to that which would need to be filed for the balance of the case. In those circumstances, absent the applicant’s delay and non-compliance, this case may well have progressed beyond the pleadings stage and potentially to the evidence stage. In any event, the matter would be well past its current sorry state of preparation.

5.    RESPONDENT’S SUBMISSIONS

49    I will briefly address the respondent’s submissions. In this regard, I note the respondent’s (correct) submission that the indemnity costs orders sought in respect of the two interlocutory applications ultimately arise from “the same matters”.

50    First, the respondent submitted that, notwithstanding the explanations proffered in Ms Burrows’ affidavit and the applicant’s written submissions, the applicant has failed to provide any satisfactory explanation for: his repeated failures to comply with the Court’s orders; his repeated failures to take timely steps to regularise those defaults, including by (anticipatorily) seeking extensions of time or otherwise communicating with the Court; and his repeated failures to respond to communications from the respondent and, on occasion, from the Court.

51    Second, the respondent submitted that the filing of its dismissal application appeared to be “the only thing which has actually prompted the applicant…to comply with the Court’s orders”. The respondent emphasised that its interlocutory application would have been unnecessary had the applicant properly engaged with the issues arising from the proposed amendments to the statement of claim, complied with the Court’s orders, sought extensions of time when required, or otherwise communicated with the respondent and the Court. As the respondent put it, its interlocutory application was “frankly an application that should never have been necessary”.

52    I accept those submissions.

53    In my view, the applicant’s failure to prosecute his interlocutory application, together with his failure to communicate in a timely way that he no longer intended to pursue it, unnecessarily prolonged the interlocutory dispute and caused the respondent to incur substantial and unnecessary costs. The respondent was required to prepare affidavit evidence and written submissions in response to an interlocutory application that was ultimately abandoned. The respondent was also required to incur the time and expense of preparing a dismissal application which would have been unnecessary had the applicant complied with the Court’s orders or taken the other steps identified by the respondent (see paragraph 51 above). Those costs were incurred as a direct consequence of the applicant’s delinquency in the conduct of the proceedings. In circumstances where there is ample evidence of unreasonable conduct which caused disadvantage to another party, I am satisfied that this case falls within the class of cases contemplated by the authorities as warranting a departure from the usual party/party costs order.

6.    CONCLUSION

54    For those reasons, the applicant is to pay the respondent’s costs of the applicant’s interlocutory application on an indemnity basis and the respondent’s costs of the respondent’s interlocutory application (incurred to date) on an indemnity basis.

55    Finally, at the conclusion of the hearing on 17 July 2026, I reiterated to the parties the Court’s expectation that litigants comply with its orders and, where any difficulty is anticipated in doing so, that litigants communicate with my Chambers at the earliest opportunity. In this regard, I was reassured by the applicant that, in future, “[t]here will be communication with the Court and with my friends”.

Associate:

Dated:    7 August 2026