Federal Court of Australia

IAH25 v Commonwealth of Australia [2026] FCA 1567

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth), the proceeding be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, including the costs of the respondent’s interlocutory application.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    For the following reasons I have granted the respondent’s request made by interlocutory application for summary dismissal of the applicant’s claim. I note that the applicant was informed of the hearing and the relief sought, but declined the opportunity to participate.

2    On 11 June 2025 the applicant filed an originating application seeking damages for personal injuries said to have arisen as a result of incidents involving other detainees whilst he was held in transit accommodation and a detention centre. The matter proceeded to the point that a defence was filed and the document disclosure process had commenced.

3    On or around 17 March 2026 the applicant made a voluntary removal request to the Department of Home Affairs seeking to leave Australia and return to Eritrea. The respondent informed the Court that as at the present date, the applicant continues to seek voluntary removal from Australia, but the date of the removal is not confirmed.

4    On 7 April 2026 a registrar of the Court made programming orders and invited the applicant’s then solicitor to seek instructions and confirm the applicant’s position regarding a voluntary removal request and whether the applicant intended to continue with the proceedings once he had left Australia.

5    It appears that the applicant’s solicitor was unable to obtain instructions from the applicant regarding the voluntary removal request or whether he intended to continue the proceeding once he had left Australia. On 20 April 2026 the applicant’s solicitor filed a notice of ceasing to act.

6    The applicant did not comply with the registrar’s programming orders.

7    On 22 May 2026 a case management hearing was listed before the registrar. The applicant declined to attend the hearing.

8    On 27 May 2026 I made orders directing that the applicant inform the Court whether he had requested or agreed to be removed from Australia, whether he intended to continue this proceeding after his removal, and his contact details in Eritrea. I directed that if the applicant did not comply with that order, the Commonwealth could file and serve an application that the proceeding be dismissed under r 5.23 of the Federal Court Rules 2011 (Cth) by 4.00 pm AWST on 24 July 2026.

9    The applicant did not comply with these orders or otherwise contact the Court after this date.

10    By interlocutory application filed 24 July 2026, the Commonwealth sought an order (as foreshadowed by the 27 May 2026 order) that the proceeding be immediately dismissed under r 5.23(1)(b)(i) of the Federal Court Rules, on the basis that the applicant was in default.

11    Rule 5.22 relevantly provides that a party is in default if they fail to comply with an order of the Court, attend a hearing in the proceeding or prosecute a proceeding with due diligence.

12    The Commonwealth relied on the applicant’s failure to:

(a)    comply with the orders of the Court dated 7 April 2026 and 27 May 2026;

(b)    attend the case management hearing on 22 May 2026; and

(c)    prosecute the proceeding diligently, given his failure to comply with the programming orders made 7 April 2026 or to engage with the Court or the Commonwealth despite numerous attempts.

13    The Commonwealth referred to the principles relating to the discretion to dismiss proceedings where there has been default by the applicant, as outlined in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388. The following observations of Wilcox and Gummow JJ at 395-396 continue to provide guidance in such scenario:

It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of 'inordinate and inexcusable delay' on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.

14    I am satisfied that the applicant has failed to comply with orders of the Court, has failed to attend hearings in the proceeding and has failed to prosecute the proceeding with due diligence, such that the threshold of r 5.22 has been met. The power to immediately dismiss having been enlivened, the question is whether it is appropriate to exercise that power in the circumstance of this case.

15    The applicant has not engaged with the proceeding after his solicitors went off the record in April 2026. He has ignored the attempts of the Court to engage with him about the ongoing conduct of the matter and similarly has not communicated with the Commonwealth, despite the attempts made by its solicitors. I acknowledge that the applicant is detained in a detention centre and that he is unrepresented, and that these factors undoubtedly have an effect on his ability to pursue the litigation. However, these factors do not prevent him communicating with the Court or the Commonwealth about his intentions, and nor do they prevent him participating in hearings by Webex (as invited).

16    There comes a point when it is apparent that an applicant no longer has any interest in prosecuting their claim, leaving a respondent in the position that unless the matter is dismissed, they must tolerate ongoing delay, costs and uncertainty. That point has been reached in this case. The absence of any satisfactory explanation for the defaults, or any evidence that establishes a willingness on behalf of the applicant to prosecute the proceeding in the future, favours an order dismissing the proceeding. I am satisfied that on balance it is in the interests of justice that the proceeding be dismissed immediately, pursuant to r 5.23(1)(b)(i) of the Federal Court Rules.

17    There will be orders accordingly.

Associate:

Dated:    20 October 2026