Federal Court of Australia

Lye v Commonwealth of Australia (as represented by the Bureau of Meteorology) (No 2) [2026] FCA 1100

ORDERS

THE COURT ORDERS THAT:

1.    The decision made by Registrar Luxton on 15 June 2026 to dismiss the applicant’s interlocutory application dated 11 June 2026 is affirmed.

2.    The applicant is to pay the respondent’s costs of and pertaining to both that application and the present application for review of its dismissal, such costs to be assessed in default of agreement in accordance with the court’s costs practice note (gpn-costs).

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

REASONS FOR JUDGMENT

SNADEN J:

1    On 14 May 2026, I dismissed an interlocutory application brought herein by the applicant, Mr Lye, for interim injunctive relief pertaining to his former employment by the respondent (the “Bureau”): Lye v Commonwealth of Australia (as represented by the Bureau of Meteorology) [2026] FCA 594 (Snaden J).

2    By an interlocutory application dated 11 June 2026, Mr Lye moved (or, perhaps more accurately, foreshadowed that he would move) for various forms of relief related to the outcome of that earlier injunction application. For the most part, the relief sought was procedural and needn’t be rehearsed; but of present importance, Mr Lye moved for orders that, “[t]he interlocutory application determined on 14 May 2026 be reopened for limited reconsideration…”

3    That application (the “Reopening Application”) fell for consideration by a registrar of the court, who, by orders made on 15 June 2026 (in the course of what appears otherwise to have been a routine case management hearing), dismissed it. His reasons for doing so are apparent from the transcript of that hearing. The registrar informed Mr Lye that his initial application for interlocutory injunctive relief (the “Injunction Application”) had “…been heard and determined…” and that it was “…not open to [him] to seek to re-open that hearing”. The registrar accepted that there might be “very limited circumstances” in which the court might reopen an interlocutory decision; but found that the presenting circumstances were not in that category. Mr Lye was told that, if he wished to challenge that Injunction Application judgment, he would need to do so by means of an appeal.

4    By application dated 30 June 2026, Mr Lye moves under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) for a review of the dismissal described above, and for the Reopening Application to be heard and determined judicially. That application (the “Review Application”) is supported by an affidavit, which Mr Lye affirmed on 30 June 2026; as well as by written submissions. Mr Lye has requested that the court should elevate the resolution of his concerns above those of litigants in other matters and hear and determine his application on an urgent basis. With some regret in hindsight, I have indulged that course. For the reasons that follow, I affirm the registrar’s dismissal.

5    Initially, it was unclear what Mr Lye had in mind by his seeking of relief that would permit the “reopening” of his long-since-determined Injunction Application. Equally unclear initially was the source of the court’s power to grant relief of that nature. At the time that he filed his Reopening Application, Mr Lye had prepared (but not yet sworn or affirmed) an affidavit in support of it. It did not assist in identifying what was intended, nor what the source of the court’s asserted power was.

6    By more recent written submissions, Mr Lye clarified what he had intended to be the nature of the Reopening Application. Specifically, he explained that he had hoped, by it, to persuade the court that there exist exceptional circumstances by reason of which the orders that were made in determination of the Injunction Application should be set aside or varied under r 39.05(c) of the Federal Court Rules 2011 (Cth) (the “FC Rules”). “Varied” is, perhaps, a generous descriptor: what he really wants is for the court to substitute victory for defeat, and thereby grant the injunctive relief that he failed to secure three months ago.

7    It is convenient to note some observations about the scope of the court’s power to set aside or vary interlocutory orders; and, in particular, its potential exercise in the present context. It is to be recalled that the court determined the Injunction Application adversely to Mr Lye. The orders that were made were not merely procedural or administrative; the application was one of substance and the court determined it after a contested hearing that, on Mr Lye’s request, was listed with a degree of urgency. In such a case, “…the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application”: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, 46-7 (McLelland J), cited with apparent approval in Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304, [32] (Besanko J) and Deloitte Touche Tohmatsu v Sadie Ville Pty Ltd (2020) 144 ACSR 1, 66-7 [275] (Markovic and O’Callaghan JJ, with whom Wigney J relevantly agreed).

8    The power conferred by r 39.05(c):

…permits the Court a discretion to set aside a judgment after an order has been entered, where the order was…interlocutory. As the authorities in respect of that rule indicate, exceptional circumstances have to be shown where an order once entered will be set aside pursuant to that rule… It certainly is not an alternative to the appellate procedure in respect of interlocutory judgments.

See: Dudzinski v Centrelink [2003] FCA 308, [11] (Spender J).

9    As Mr Lye himself crisply observed: “…rule 39.05(c) is not to be used merely because a party wishes to present the same case more effectively…”

10    As did the registrar, I consider that Mr Lye’s Reopening Application was misconceived. Central to his complaint is that, by dint of various “…health issues, disability-related participation limitations, and the practical difficulties that [he] continue[s] to experience in conducting the proceedings as a self-represented litigant…”, he was unable to present as comprehensive a case in prosecuting his Injunction Application as might have been preferred. That, he maintains, resulted in his Injunction Application being “…determined without [his] having had a practical and procedurally fair opportunity to place [his] case before the [c]ourt”. That was because, in part, he was unable properly to consider the evidence and submissions that the respondent advanced in opposition to his Injunction Application. His submission continues: “[a]t its heart, this application concerns access to justice”.

11    None of those contentions can be accepted. Mr Lye has had at least his fair share of access to justice. The suggestion that he was denied a fair hearing because, by reason of personal limitations, he was unable properly or adequately to process the case pressed in resistance to his own is plainly unsustainable. Mr Lye had a proper opportunity to advance the case that he advanced in favour of interlocutory injunctive relief. He did not request any more time than he was given; and, indeed, he made coherent submissions at a hearing that, on his request, was listed with urgency. That he might have advanced a better case had he had more time or a greater opportunity to consider what the respondent had put against him may be accepted. He might also have done better had he been represented by a national law firm and a team of expensive silks. None of that matters. Procedural fairness inheres in affording an opportunity to mount the case that one wishes to mount. What that opportunity requires is, it might be accepted, context-specific. Nonetheless, if, whether for reasons of personal limitation, expense or even ineptitude, such opportunity as is afforded goes unavailed of (in the sense that the evidence and contentions that are advanced are not as good as they could have been), that does not reflect any want of procedural fairness.

12    But it wouldn’t matter were it otherwise. Mr Lye’s Injunction Application was heard and determined. If his complaint was that that determination was attended by some measure of procedural unfairness—including something that, for whatever reason, he did not agitate at the time—then there are (or, certainly, were) options open to him so to contend. None of them assume the form of the application’s “reopening”.

13    What, then, of the existence of “exceptional circumstances”? Might it be said that there now exists new material or circumstances sufficient to warrant the relitigating of the Injunction Application? In short: no. The Injunction Application was refused principally because the court was not satisfied that there was a prima facie case to warrant injunctive relief. Although I accepted that the balance of convenience favoured (albeit only slightly favoured) relief of that nature, I was also concerned about the delay in prosecuting what was sought.

14    Presently, Mr Lye submits that he has conceived of additional arguments supportive of the point that he advanced in May: namely, that there was a prima facie case for injunctive relief. That is not new material and it does not bespeak the existence of exceptional circumstances. At best, it’s no more than a new argument that, with the benefit of time, Mr Lye has conjured now but didn’t think of at the time. That does not come remotely close to warranting the exceptional relief that r 39.05(c) contemplates.

15    Likewise, Mr Lye points to new evidence that he says that he can lead about his deteriorating health and rehabilitative prospects; concerns to which the interlocutory injunctive relief that he originally sought was directed. That is the sort of material that, in the right circumstances, might accumulate to a point that warrants the setting aside or varying of interlocutory orders. Presently though, it doesn’t get to that point. Whatever the nature of Mr Lye’s “new evidence” or circumstances, they are not such as to reflect the existence of a prima facie case for interlocutory injunctive relief. It is all well and good for Mr Lye now to say, “I need injunctive relief even more now than I did when I first failed to secure it”. Absent some basis in law upon which relief of that nature might actually be appropriate, a submission of that kind (even assuming that it might properly be advanced) does not advance things.

16    Further still, Mr Lye says that he can lead evidence to contextualise the delay that attended his application for interim reinstatement. Even assuming that he can, that is not sufficient. There is nothing that can be led now that couldn’t have been led three months ago. That he might present that evidence now is not something that warrants the kind of extraordinary relief that r 39.05(c) of the FC Rules contemplates.

17    Mr Lye is no doubt disappointed with the manner in which his Injunction Application was determined; but that is not a circumstance that entitles him to relitigate the claim, no matter what his personal circumstances might be. Despite his protestations to the contrary, I consider it clear beyond doubt that the Reopening Application was little more than a mechanism by which to prosecute a second claim to the same injunctive relief that he failed to secure the first time around. In that sense, the Reopening Application was meritless and self-indulgent, and, with respect, the registrar was right to dismiss it. The interests of justice do not favour its granting. Even assuming that I could, I would, for the same reasons, decline to treat the Reopening Application as though a standalone application for the same injunctive relief that I have already declined to grant (as Mr Lye requested in the alternative). There is no occasion (certainly no sufficient occasion) to revisit that determination. As concerns the Review Application, I have no hesitation in affirming the registrar’s dismissal decision. Mr Lye’s Reopening Application dated 11 June 2026 stands (or remains) dismissed.

18    The Bureau seeks an order that Mr Lye should pay its costs of and pertaining to the Review Application and the Reopening Application to which it relates. Such an order, if it is to be made, must clear the hurdle established by s 570(1) of the Fair Work Act 2009 (Cth), which otherwise applies to this matter.

19    In order that the court might make a costs order against him, it will need to be satisfied that the Review Application and the Reopening Application to which it pertains have been pursued vexatiously or without reasonable cause, or have otherwise and unreasonably led to the Bureau’s having to incur costs that it ought not to have incurred. I am satisfied that that hurdle is cleared. Mr Lye’s Reopening Application was foredoomed to failure and ought never to have been pursued. His Review Application is equally futile and the Bureau ought not to have been put to the expense that it has been in resisting them. Furthermore, it is unreasonable for Mr Lye to put the Bureau to the time and expense of defending a claim that it has already successfully defended. Mr Lye is not shielded from the consequences of his actions by the fact that he is a self-represented litigant and/or a person who labours under unfortunate personal circumstances: see, in a related although not identical context, Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 7) [2026] FCA 893, [73] (O’Bryan J).

20    The Bureau estimates that its costs of resisting the two futile applications (the Reopening Application and the Review Application) come to approximately $22,700.00. That strikes as unlikely but I might be wrong about that; and, in any event, I needn’t determine any figure. It suffices to order, as I will, that Mr Lye should pay the Bureau’s costs of and pertaining to his interlocutory applications of 11 June 2026 and 30 June 2026.

Associate:

Dated:    12 August 2026