Federal Court of Australia

Ross v Stewart [2026] FCA 1097

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed pursuant to ss 25(2B)(ba), 25(2B)(bb)(ii) and 25(2BA) of the Federal Court of Australia Act 1976 (Cth) and, if necessary, rr 1.40, 35.32 and 35.33 of the Federal Court Rules 2011 (Cth), for non-appearance and want of prosecution.

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

REASONS FOR JUDGMENT

(Delivered ex tempore)

STELLIOS J:

1    Before the Court is an application for leave to appeal from the judgment of the primary judge in Ross v Stewart [2025] FCA 1328. The primary judge made orders dismissing an interlocutory application and permanently staying an originating application as an abuse of process.

2    The proposed grounds of appeal are variously set out in the leave application and the draft notice of appeal exhibited to the applicant’s supporting affidavit, affirmed on 5 November 2025. The applicant, Christopher Ross, alleges errors of law by the primary judge on several bases, going both to the procedural steps taken and the outcome reached. The draft notice of appeal seeks, among other things, the quashing of the judgment below, as well as all decisions and judgments in two related proceedings, and an order for Mr Ross to be provided legal representation.

3    The respondent has filed a submitting notice in the proceeding.

4    Mr Ross did not appear this morning when the matter was called for hearing.

5    To explain the reasons for my orders, it is necessary to outline the communications between Mr Ross and the Court’s Registry since the matter was allocated to my docket.

6    The Registry first emailed the parties in the proceeding on 3 December 2025, notifying them that the matter had been allocated to my docket. Mr Ross’ availability to attend a case management hearing in February 2026 was requested.

7    No response having been received, the Registry sent a follow up email on 4 March 2026, requesting Mr Ross’ availability to attend a case management hearing in either March or April 2026.

8    Mr Ross replied the next day asking whether the case management hearing would be “online or in person”. The following day, but prior to any reply by the Registry to his earlier email, he sent a further reply stating “Im not available this date [sic]”.

9    On 9 March 2026, the Registry responded to Mr Ross’ emails of 5 and 6 March 2026 to clarify that the case management hearing would be held online and take around 30 minutes. The Registry asked Mr Ross for his availability between 13 and 24 April 2026. The applicant replied a few minutes later stating, “On these dates I have no availability”. No indication of when he might be available was provided.

10    On 16 March 2026, the Registry sent Mr Ross the Court’s Litigant in Person Practice Note and acknowledgement form. The email did not ask Mr Ross about his availability for a case management hearing, however, Mr Ross responded approximately 30 minutes after it was sent to say that he was “just not available on those dates”. This may have been a reference to the date range identified in the email on 9 March 2026.

11    Regardless, having not received any indication from Mr Ross since early December 2025 as to his available dates for a case management hearing, the Registry sent an email to Mr Ross later on 16 March 2026 notifying him that an online case management hearing had been listed for 9:15AM on Wednesday 13 May 2026. The email provided a Microsoft Teams link for the purposes of accessing the online case management hearing. Mr Ross did not reply to confirm receipt of the listing email as requested in the body of the email.

12    On 18 March 2026, the Registry responded to Mr Ross’ email of 16 March 2026 to clarify that the purpose of sending the Court’s Litigant in Person Practice Note and acknowledgement form was “to provide guidance to help [Mr Ross] understand [his] responsibilities as a litigant in person” and notifying him that the email attached “a form that [Mr Ross] need[ed] to sign and return to the Court”. The email also referred to the separate notification Mr Ross had received of the date and time of the case management hearing. It outlined to Mr Ross that if he was available at that date and time, to “please reply to confirm as requested in that email”. If he was not available on the proposed date, he was requested to “please reply to that email suggesting alternative dates on which [he was] available to attend a 30-minute online case management hearing”. Mr Ross did not respond to this email.

13    On 5 May 2026, the Registry emailed Mr Ross to remind him of the forthcoming online case management hearing and to notify him that, following a change in the Court’s default videoconferencing platform, the case management hearing would occur via WebEx. The email provided Mr Ross with a WebEx link to use to access the case management hearing. Mr Ross did not respond to this email.

14    Mr Ross did not appear at the case management hearing on 13 May 2026 when the matter was called, either via WebEx or via Microsoft Teams, with my Chambers having separately dialled into the latter link to ensure there had not been a misunderstanding with Mr Ross as to the appropriate link to use. The matter was adjourned 10 minutes after the time listed for the commencement of the case management hearing, there having been no appearance by Mr Ross in either the WebEx link or the earlier Microsoft Teams link created for the case management hearing. Mr Ross did not contact the Registry by email to indicate that he would not be attending the case management hearing or to explain his non-appearance.

15    On 27 May 2026, the Registry sent an email to the applicant asking him to “please explain to the Court the reasons for his non-appearance” at the case management hearing on 13 May 2026. Mr Ross did not respond to this email.

16    On 18 June 2026, I made timetabling orders. On the same day, the Registry sent a further email requesting a response to the earlier email of 27 May 2026, and notifying Mr Ross that timetabling orders had been made in the proceeding. The timetabling orders were attached to the email. The body of the email highlighted to Mr Ross that “Order 2 lists [] the application for leave to appeal for an online hearing at 10:15AM on Tuesday 4 August 2026, accessible via the below WebEx link”. There was also an order that Mr Ross file an outline of written submissions by 4.00pm on 13 July 2026.

17    Mr Ross did not file an outline of written submissions and, as indicated, he did not appear at the hearing today.

18    In light of the foregoing, I am satisfied that Mr Ross has had sufficient notice of today’s listing and sufficient opportunity to prepare and file an outline of submissions in support of his leave application. Following multiple attempts from the Registry to secure Mr Ross’ availability, and notwithstanding Mr Ross’ earlier engagement in email correspondence with the Court, Mr Ross has not engaged with these proceedings since 16 March 2026. When requested multiple times, he failed to provide his available dates for the case management hearing. When he did reply to Registry emails, there was no meaningful response provided to progress the timetabling of this matter. He has failed to attend two listed hearings: the case management hearing on 13 May 2026 and the hearing today. He has failed to sign the acknowledgment form that accompanied the sending of the Litigant in Person Practice Note on 16 March 2026. He has failed to file an outline of written submissions.

19    In these circumstances, I consider it appropriate to dismiss the leave application pursuant to ss 25(2B)(ba), 25(2B)(bb)(ii) and 25(2BA) of the Federal Court of Australia Act 1976 (Cth) and, if necessary, rr 1.40, 35.32 and 35.33 of the Federal Court Rules 2011 (Cth), for non-appearance and want of prosecution.

Associate:

Dated:    7 August 2026