Federal Court of Australia

Huang v Octec Limited (Leave to Appeal) [2026] FCA 1089

ORDERS

THE COURT ORDERS THAT:

1. The application for an extension of time for leave to appeal is dismissed.

2. The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1 This is an application for an extension of time for leave to appeal from interlocutory orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 9 February 2026 (February Orders).

2 For reasons I will detail below, by the February Orders, the primary judge dismissed an application by the applicant seeking relief from “self-executing” orders which had been made on 25 November 2025 (November Orders).

3 The November Orders required the applicant, as a condition upon which a further adjournment of a final hearing was granted, to pay the respondent’s costs thrown away by 2 February 2026, failing which the proceeding would stand dismissed.

4 The applicant did not comply with that condition, and the self-executing dismissal consequently took effect on 2 February 2026. The application determined on 9 February 2026 sought, in substance, to relieve the applicant from the consequences of that non-compliance.

5 But even more than usual it is necessary to understand the procedural context out of which the impugned orders emerged. Put shortly, the February Orders amounted to the culmination of what can only be described as an extraordinary and lengthy procedural history spanning some years. It is necessary (regrettably, at some length) to set out that history before identifying the nature of the present application.

B    THE PROCEDURAL HISTORY

6 Over seven years ago, on 8 May 2019, the applicant made a complaint to the Australian Human Rights Commission. The complaint was ultimately terminated on 3 November 2020.

7 On 5 January 2021, the applicant commenced a proceeding in this Court by originating application under the Australian Human Rights Commission Act 1986 (Cth). Orders were made on 24 March 2021 transferring the proceeding to the Federal Circuit Court of Australia (as it was then known).

8 After a series of preliminary steps in that Court, orders were made on 3 March 2023 which listed the proceeding for final hearing on 6 and 7 June 2023.

9 The following month, on 6 April 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made certain orders described as “guillotine” orders. On 3 May 2023, the applicant filed in this Court an application for an extension of time and leave to appeal in respect of those orders.

10 That leave application ran in parallel with the substantive proceeding in the Federal Circuit and Family Court. On the afternoon of Friday, 2 June 2023, immediately before the final hearing scheduled to commence the following Tuesday (and after the respondent had done the necessary work to prepare for trial), the applicant emailed the Associate to the trial judge. She stated, among other things, that she could not attend the final hearing because she was “waiting for the application in proceeding date [sic]” and had no legal assistance because legal aid had been refused. She requested the Court’s assistance as to what to do in relation to the listed hearing.

11 As it happened, on the same day, the Court independently notified the parties that because of unexpected changes in the allocated judge’s calendar, the June hearing dates were vacated, and the hearing of the matter was listed for 4 and 5 September 2023.

12 Following the applicant’s non-appearance at a case management hearing in the Federal Court on 17 July 2023, her leave application in this Court was dismissed with costs. On the same day, in the Federal Circuit and Family Court proceeding, the parties were informed that the final hearing listed for 4 and 5 September 2023 had again been moved to 5 and 6 October 2023. This was the third scheduled final hearing (albeit the last two changes to the listing dates had been instigated by the Court).

13 Less than two days before the revised scheduled final hearing in October 2023, the applicant sought an adjournment on the bases that: (a) she had not received documents from relevant parties; (b) had been unable to obtain legal assistance; (c) the case was not ready without the documents; and (d) because she had “health issues”.

14 The hearing was not adjourned on the papers. On the first day of the hearing, there was no appearance by the applicant. However, the hearing did not proceed in her absence, and the trial judge granted what was characterised as the applicant’s informal application on the papers to adjourn the hearing.

15 On 19 October 2023, the respondent filed an application seeking summary dismissal of the proceeding. The application was heard on 8 December 2023, when orders were made dismissing the proceeding with costs.

16 On 23 January 2024, the applicant filed a further application in the Federal Court for an extension of time and leave to appeal from the summary dismissal of her claim. By this time, the applicant had obtained pro bono counsel. Ultimately, on 14 October 2024, the appeal in this Court was allowed by consent (and hence the orders made on 8 December 2023 were set aside): Huang v Octec Limited [2024] FCA 588 (per Wigney J).

17 It was by this somewhat tortured path that the proceeding returned to the Federal Circuit and Family Court.

18 Following the remittal, the primary judge assumed responsibility for the management of the proceeding. On 7 March 2025, his Honour again fixed the matter for a two-day final hearing commencing on 16 June 2025 and made detailed directions designed to ensure the proceeding would be ready for trial.

19 Those directions were not complied with by the applicant. At the respondent’s request, the matter was relisted approximately two weeks before what was then the fourth scheduled final hearing. The applicant then sought an adjournment of the June hearing dates, submitting, among other things, that she had been ill for some months, although no medical evidence of illness was then provided to the Court.

20 On 29 May 2025, after receiving detailed submissions, the primary judge vacated the June hearing dates, listed the proceeding for directions on 15 August 2025 and stayed it pending the applicant’s compliance with certain of the earlier directions. His Honour also ordered the applicant to pay the respondent’s fixed costs of $1,000. Importantly, his Honour warned that if the applicant did not comply with specified March orders and pay the costs by 15 August 2025, the Court would consider dismissing the proceeding for non-compliance pursuant to r 13.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

21 This course had no salutary effect. After non-compliance with those March orders, the respondent’s solicitors sent proposed short minutes of order to the primary judge’s Associate and the applicant. On the day before a scheduled directions hearing, the applicant served material seeking to have the costs order vacated.

22 On 15 August 2025, orders were made lifting the stay and listing the proceeding, yet again, for final hearing on 24 and 25 November 2025. The order for payment of the $1,000 costs was varied so that no date for payment was specified, and the application to set that order aside was deferred until after the determination of liability at the substantive hearing.

23 On 13 November 2025, six business days before the final hearing, the applicant yet again emailed the primary judge’s Associate seeking an adjournment of the trial dates, again citing ill health and medical issues (among other things).

24 The following day, the application for an adjournment was refused. The primary judge’s reasons were published in Huang v Octec Limited (No 2) [2025] FedCFamC2G 2164. With considerable understatement, his Honour described the matter (at [3]) as having a “long and troubled history”.

25 In Huang v Octec Limited (No 2), in dealing with the adjournment application (at [12]–[21]), his Honour referred to r 1.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). His Honour noted that the overarching purpose was to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. His Honour remarked (at [18]) that it would be “grossly unfair” to the respondent for the then scheduled trial date to be adjourned because of the cost and inconvenience that would cause. His Honour also referred (at [16]) to the absence of any medical evidence supporting the application.

26 Five days later, on 19 November 2025, the applicant informed the respondent’s solicitors that she would not be able to attend the hearing. At 1:53 pm that day, she also informed the primary judge’s Associate that she “cannot attend the court hearing on 24 and 25 November due to my medical conditions”. That communication was not copied to the respondent, nor was the accompanying medical certificate served upon it.

27 Shortly afterwards, the Associate advised the parties that the applicant had provided a medical certificate stating simply that she was “unable” to attend Court. Through his Associate, the primary judge indicated that any cogent medical certificate was required to confirm that the applicant was medically unfit to attend and specify when she was expected to be fit to attend. The Associate also requested notification of the respondent’s position on the proposed adjournment.

28 The respondent promptly replied that the medical certificate had not been served, drew attention to the recent procedural history, and noted that it had borne the burden of trial preparation because the applicant was self-represented. The respondent submitted that the proceeding concerned events from 2018 to 2020 and that it would be prejudiced by further delay. It opposed the adjournment and, in any event, sought its costs thrown away.

29 Just before midnight on 19 November 2025, the applicant sent the Associate a further medical certificate. It stated that the applicant “has sleep issues with obstructive sleep apnoea and knee pain with osteoarthritis and bilateral leg swelling. She is medically unfit to attend a hearing on 24/11/2025 and 25/11/2025”.

30 The following morning, consistently with what had been communicated previously concerning the required content of any medical certificate, the Associate advised the applicant his Honour’s view that the certificate must state that she was medically unfit, detail a prescribed treatment plan and provide the doctor’s best estimate of when she was likely to be able to attend a two-day hearing. The primary judge also requested an opinion as to whether shorter half-day hearings would be more appropriate. The parties were told that unless a certificate meeting the requirements was provided by noon on 21 November 2025, the hearing would proceed.

31 After an extension of time was granted to the applicant to comply with this last direction, at about 4:05 pm on Friday, 21 November 2025 (that is, the last business day before the hearing was to commence) the applicant provided a further medical certificate. Very shortly afterwards, the Associate confirmed that the final hearing listed for 24 and 25 November 2025 had been vacated and the matter listed for directions.

32 At that directions hearing, the primary judge delivered reasons published in Huang v Octec Limited (No 3) [2025] FedCFamC2G 2165. His Honour explained (at [6]) that, notwithstanding his “considerable doubts about the sufficiency of the rationale advanced for the applicant’s alleged unfitness to attend Court”, he had determined that the safest course was to vacate the final hearing dates.

33 In Huang v Octec Limited (No 3), his Honour then dealt with the respondent’s foreshadowed application for costs thrown away (at [8]–[13]) and whether a self-executing order should be made (at [14]–[15]). Despite their length, it is worth setting out the relevant paragraphs from his Honour’s reasons:

[10]    I now turn to the question of whether a costs order should be made. In my view, the relevant history includes: (a) that the matter has already been adjourned once; (b) that I confirmed the final hearing dates on 14 November 2025; (c) that the medical evidence was provided very late after initially being inadequate; and (d) that, in my assessment, the medical evidence is not of the standard that ought to have been presented to the Court.

[11]    I note that on 14 November 2025, I said the following:

The matter has been set for trial for some months after it was previously adjourned, and it is in the public interest that this trial be finalised as soon as possible. In my view, it would be grossly unfair to the respondent for the second trial date to be adjourned, with the cost and inconvenience that would cause. Court resources are a public good, which is limited in nature, that behoves parties who seek the intervention of the courts to act in an expeditious and efficient manner which allows this Court to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible.

[12]    Sadly, my exhortation has fallen on deaf ears with the applicant again effectively leaving the Court with no option but to vacate the final hearing dates. Given the history of this matter, in my view, it is appropriate to make a costs order. I am conscious of the time and effort that has been placed on the respondent in bringing this matter to readiness for trial. The failure of this matter to go to trial on the first and second occasions lies entirely at the feet of the applicant. While I am conscious that amendments have been made in relation to costs in human rights matters, which this proceeding broadly falls within, I do not consider those amendments to preclude a costs order in this case for the following reasons: firstly, the proceeding predates those amendments, and secondly, the overall conduct of the applicant has been, in my view, unreasonable.

[13]    I am satisfied that I should make a costs order in all of the circumstances, and that the amount sought by the respondent is, in all of the circumstances, reasonable. I am satisfied that the applicant ought to be given a reasonable period in which to pay that amount. In my view, a deadline of 2 February 2026, being approximately nine to ten weeks from today, is an appropriate and reasonable period. The issue then becomes whether I should grant a self-executing order: r 5.21 and rr 5.08(b) and 5.10(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[14]    In my view, failure to make a self-executing order would allow the applicant to avoid the consequences of non-compliance by simply failing to pay the amount ordered, which would cause significant damage to the respondent. I note that I previously ordered the applicant to pay costs of $1,000, which, as of today’s date, has not been complied with. Had the applicant complied with that order, I may have been minded not to grant a self-executing order.

[15]    In my view, given the totality of the history of this matter, it is appropriate that I make a self-executing order such that if the applicant fails to pay the costs that I have ordered, the entirety of the proceeding will be dismissed, and the applicant is to pay the respondent’s costs as assessed or agreed. Whilst I am very conscious of the gravity of the orders I have made, I am satisfied that it is, overall, in the interests of justice that I make the orders. Those who come to Court cannot expect to walk away scot-free from the consequences of failing to comply with Court orders, even in matters such as this. That is the risk parties take when they commence Court proceedings.

34 The November Orders were then made in the following terms:

1.    The Applicant to pay the Respondent’s costs thrown away, of and incidental to the vacation of the hearing dates on 24 and 25 November 2025 fixed in the amount of $10,240.40.

2.    The costs identified in Order One are payable by the Applicant by 2 February 2026.

3.    The Applicant is to provide the Respondent and the Court with evidence of payment of the costs identified in Order One, on making of the payment by the Applicant.

4.    The parties have liberty to apply on 3 days’ notice.

5.    In default of compliance by the Applicant with Orders One and Two above, pursuant to rr 5.08(b) and 5.10(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and s 192(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth):

(a)    The Application is dismissed.

(b)    The Applicant to pay the Respondent’s costs of the proceedings, as assessed or agreed.

35 By 2 February 2026, the applicant had not paid the $10,240.40 and the dismissal took effect. At about 5:00 pm that day, the applicant served an “Application in an Appeal” seeking to stay and set aside the costs order or, alternatively, to defer payment until the end of the proceeding. The primary judge treated it as an application to set aside the November Orders pursuant to r 24.04(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

36 On 4 February 2026, being the Wednesday before the hearing of that application, the applicant again wrote to the Associate that, because of her ongoing medical conditions, she was unfit to attend the hearing physically and sought to appear by telephone. The Associate informed the parties that the primary judge would consider allowing an appearance by audio-visual link only if a medical certificate meeting specified requirements was provided.

37 On 6 February 2026, the applicant provided a medical certificate which stated, among other things, that she was unfit to attend in person and had been referred to a cardiologist and a sleep physician. The primary judge permitted the applicant to appear by audio-visual link.

38 It is against this long and lamentable procedural history that one comes to the impugned February Orders and the reasons published as Huang v Octec Limited (No 4) [2026] FedCFamC2G 220.

39 By those February Orders, the primary judge dismissed the application, confirmed the November Orders, and ordered the applicant to pay the respondent’s further costs fixed at $5,115.55. The February Orders noted that the discrimination proceeding had been dismissed in its entirety on 2 February 2026 by reason of the applicant’s failure to pay the costs of $10,240.40.

40 In Huang v Octec Limited (No 4), the primary judge explained (at [16]–[19]) how the applicant had persistently failed to meet the minimum requirements of diligent prosecution, that the respondent had suffered significant prejudice, and that his Honour could have no confidence the applicant would comply with future case management orders if the proceeding were reinstated. His Honour was mindful that the proceeding would be brought to an end and also took into account the applicant’s self-represented status and the indulgences she had already received.

C    THE NATURE OF THE PRESENT APPLICATION

41 On 25 March 2026, the applicant filed the present application seeking an extension of time within which to apply for leave to appeal and, if that extension were granted, leave to appeal from the February Orders. The proposed notice of appeal advanced six grounds which substantially overlap.

42 First, the applicant contended that the primary judge failed properly to evaluate the medical evidence concerning her capacity to participate in the litigation. She submitted that insufficient weight was given to unchallenged medical evidence and that the conclusions concerning her ability to prosecute the proceeding lacked an adequate evidentiary foundation.

43 Secondly, she contended that the primary judge erred in characterising her conduct as demonstrating a failure diligently to prosecute the proceeding, with insufficient regard being paid to her status as a self-represented litigant, the complexity of the litigation and her medical circumstances.

44 Thirdly, the applicant submitted that the primary judge failed adequately to consider less severe alternatives before allowing the self-executing dismissal to stand, including further time, payment arrangements, further medical clarification or additional case management orders.

45 Fourthly, she contended that permanently terminating a substantive discrimination proceeding was disproportionate to the procedural defaults which had occurred.

46 Fifthly, the applicant alleged a denial of procedural fairness because findings were made about her future ability to prosecute the proceeding without a sufficient opportunity to address those matters.

47 Sixthly, she submitted that inadequate weight was given to the practical disadvantages confronting a self-represented litigant conducting complex litigation while suffering from significant medical conditions.

48 The respondent submitted that none of the proposed grounds identified any arguable appealable error in the exercise of the primary judge’s discretion and that the application satisfied neither of the requirements identified in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397.

D    APPLICABLE PRINCIPLES

49 The principles governing an application for leave to appeal from an interlocutory judgment are well settled. Consistently with the facilitation of a just resolution, an applicant must ordinarily show: first, that in all the circumstances the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and secondly, that, supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd (at 398–399 per Sheppard, Burchett and Heerey JJ).

50 Those considerations are cumulative and interrelated. The sufficiency of the doubt and the question of substantial injustice bear upon each other. They reflect the public interest in confining appellate intervention in interlocutory decisions to cases where intervention is justified, having regard to the efficient disposition of litigation.

51 Where, as here, the proposed appeal challenges the exercise of a discretionary procedural power, those principles must be read with the well-established limitations upon appellate review explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 504–505 per Dixon, Evatt and McTiernan JJ). It is not sufficient to demonstrate that another judge might have reached a different conclusion. Appellate intervention is confined to cases where error of the kind identified in House is established.

52 Further, the power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions in s 37M of the Federal Court of Australia Act 1976 (Cth): Nationwide News Pty Limited v Rush [2018] FCAFC 70 (at [2] per Lee J, Allsop CJ and Rares J agreeing).

53 I am not unmindful that the present application also seeks an extension of time. Although that extension was opposed, I considered the determinative consideration on the extension application to be the underlying merit of the proposed appeal. If an arguable application for leave were demonstrated, I would be disposed to extend time. If it were not, an extension would be futile.

54 I therefore turn to the proposed grounds of appeal.

E    CONSIDERATION

55 In my view, none of the proposed grounds, whether considered individually or collectively, discloses sufficient doubt about the correctness of the February Orders to warrant the grant of leave. Nor am I persuaded that refusal of leave would occasion substantial injustice.

56 At the forefront of the applicant’s submissions was the contention that insufficient weight had been given to the medical evidence. That submission cannot be accepted. The primary judge did not ignore, overlook or reject the medical evidence. To the contrary, the procedural history demonstrates that his Honour accepted it to the extent that it resulted in the vacation of the November 2025 hearing dates and in the applicant being permitted to appear by audio-visual link in February 2026. His Honour was well aware of the medical history when it came to making the February Orders.

57 Properly analysed, the complaint is not that the evidence was not considered, but that the applicant disagrees with the weight the primary judge ultimately gave it when deciding whether to set aside the November Orders.

58 The laborious recounting of the procedural history set out above, amply illustrates that the medical evidence upon which the applicant relies did not exist in a vacuum. The applicant’s medical difficulties had been articulated (initially less than compellingly) on many occasions, and her issues were allegedly persisting. But in deciding what needed to be done, the primary judge had to evaluate the medical material against a lengthy history of repeated procedural defaults, multiple adjournments, wasted hearing dates, and substantial prejudice to the respondent and the proper administration of justice. It was plainly open to his Honour to conclude that the applicant’s longstanding ongoing medical issues did not outweigh those competing considerations in fastening upon the remedial response selected.

59 In particular, the detailed reasons for the costs order demonstrate that the primary judge, correctly, was cognisant of the fact that the latest adjournment occasioned real prejudice to the respondent. One consequence of a respondent facing a self-represented litigant is that the respondent may bear a substantial burden in ensuring the Court is apprised of sufficient information to allow the case to proceed efficiently. Here, the respondent had borne the brunt of preparing the case repeatedly and had incurred costs which were thrown away. The costs order was not punitive; it was compensatory and reflected the considerations identified by the primary judge.

60 Equally unpersuasive is the submission that the primary judge incorrectly characterised the applicant’s conduct as demonstrating a failure diligently to prosecute the proceeding. That submission is remarkable considering the procedural history. This was not a case involving an isolated failure to comply with a procedural order. By the time the February Orders were made, the applicant (although admittedly succeeding in overturning an earlier summary dismissal) had received repeated opportunities to prepare the matter for hearing, had been granted multiple extensions and adjournments, had caused some allocated hearing dates to be vacated, and had repeatedly been afforded indulgences notwithstanding earlier non-compliance.

61 When one has proper regard to the whole of the procedural history, the conclusion that the applicant had failed diligently to prosecute the proceeding was not only plainly open but inevitable in the circumstances.

62 The applicant next submitted that the primary judge failed adequately to consider less severe alternatives. That submission is also inconsistent with the procedural history. It is evident that less severe alternatives had already been adopted without success. Earlier procedural and substantive hearings had been repeatedly adjourned notwithstanding earlier defaults (even though the applicant was not responsible for all these adjournments).

63 The November Orders themselves represented an alternative to immediate dismissal. Rather than then terminating the litigation, the primary judge permitted it to continue upon the condition that the respondent’s costs thrown away be paid. It was only when the applicant failed to satisfy that condition that the self-executing order operated according to its terms.

64 I pause here to note that there is nothing inherently unfair, novel or remarkable about a self-executing order. As the Full Court explained in LFDB v SM [2017] FCAFC 178; (2017) 256 FCR 218 (at 227–228 [40] per Besanko, Jagot and Lee JJ), self-executing or “springing” orders, which may bring a proceeding to an end, are well established.

65 In the circumstances, any suggestion that the November Orders fell outside the range of alternatives available to a primary judge faced with the difficult situation confronting his Honour is unsustainable.

66 Relatedly, the applicant complained that dismissal was disproportionate. It is, of course, correct that dismissal brought the discrimination proceeding to an end. But the seriousness of that consequence was fully appreciated by the primary judge. Indeed, it explains why repeated indulgences had been afforded. The question is not whether dismissal was a serious outcome, but whether, after the procedural history of this litigation, it was outside the proper exercise of discretion to conclude that the interests of justice no longer permitted further indulgence. No House error has arguably been identified in that evaluative conclusion.

67 Nor am I persuaded that any denial of procedural fairness occurred. The applicant had repeated opportunities to place medical evidence before the Court and to make submissions about both her medical circumstances and, more critically given the primary judge’s finding, her ability to continue the litigation. The concerns ultimately expressed did not emerge without warning; they reflected matters ventilated over successive communications and interlocutory hearings.

68 The applicant’s reliance upon her position as a self-represented litigant does not advance the proposed appeal. The procedural history demonstrates that the primary judge repeatedly accommodated that position. Her status informed the discretion to grant the numerous extensions, adjournments and other procedural indulgences that were granted.

69 But in any event, self-representation does not relieve a litigant from compliance with Court orders or entitle a party to indefinite indulgence. The administration of justice requires fairness not only to one litigant, but also to the opposing party, other litigants awaiting hearing dates, and the Court itself. As has often been said, litigants are entitled to their day in court, but not another person’s day in court.

70 When analysed, the applicant’s submissions amount to little more than an invitation to re-exercise the discretion differently. That is not the function of an appellate court and none of the proposed grounds identifies an arguable error of principle, failure to take account of a relevant consideration, reliance upon an irrelevant consideration, or conclusion which could be characterised as plainly unreasonable. They therefore fail to disclose sufficient doubt about the correctness of the February Orders.

71 Although that conclusion is determinative of the application of extension of time, I am also not satisfied that refusal of leave would occasion substantial injustice.

72 Justice, after all, is a two-way street. The primary judge’s orders represented the culmination of an extended history of procedural accommodation at the respondent’s expense. The question of substantial injustice to the applicant must be assessed in the context against the ongoing and considerable prejudice occasioned to the respondent and the importance of bringing this long-running matter to an end. To grant leave would occasion, yet again, further delay. I share the primary judge’s concern that this matter would ever be litigated efficiently or in accordance with case management imperatives. This is a paradigm example in which the need to exercise the discretion consistently with the overarching purpose mandates dismissal of the application.

73 I should mention a further matter although it is again not determinative. The respondent accepted that the dismissal was not a determination of the underlying case on its merits and did not contend that the dismissal itself created a res judicata or it was able to invoke any other related principle of preclusion. I received no submissions, however, about whether it would be open to the applicant to commence another proceeding given the expiry of any limitation period or by reason of any other factor. I therefore express no conclusion on this question.

F CONCLUSION AND ORDERS

74 Because the proposed appeal does not disclose an arguable ground (neither of the Décor Corporation Pty Ltd considerations is satisfied), there is no sufficient basis to extend time. The application for an extension of time must be dismissed with costs.

Associate:

Dated: 12 August 2026