Federal Court of Australia

United Petroleum Pty Ltd v Bomma (No 3) [2026] FCA 1640

REASONS FOR JUDGMENT

Ex tempore, revised

WHEELAHAN J:

1    This proceeding currently stands dismissed. The proceeding is at an end because upon striking out the amended statement of claim and dismissing an application for leave to file a further amended statement of claim, the applicant (United) did not take up the opportunity to file a further interlocutory application seeking leave to file a further amended statement of claim. That opportunity was given under cover of a self-executing order made 4 August 2026 which provided that if United did not make an application for leave by 4.00 pm 25 August 2026 the proceeding would stand dismissed with costs. The circumstances in which that occurred are set out in the reasons for judgment published on 4 August 2026: United Petroleum Pty Ltd v Bomma [2026] FCA 1055 (J).

2    By an interlocutory application filed at 3.48 pm on 25 August 2026 United sought an enlargement of time until 4.00 pm on 8 September 2026 within which to make an application to file a further amended statement of claim. This would carry with it an order that the dismissal of the proceeding be set aside. Subsequently, an amended interlocutory application was filed on 28 August 2026 which, inter alia, sought an additional order that the proceeding be reinstated pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). United also sought an order that the respondents pay its costs of the interlocutory application but this part of the application was abandoned during the course of the hearing. The application is opposed by the respondents.

Background

3    The proceeding was commenced on 17 April 2024, that is, more than two and a half years ago. A statement of claim was filed with the originating application. The statement of claim was endorsed with a certificate by United’s solicitor that the factual and legal material available to him provided a proper basis for each allegation in the pleading. The causes of action that were alleged were breach of confidence (which was later abandoned), unlawful interference with contractual relations, breach of claimed fiduciary duties and a claimed equitable duty to act in good faith, and misleading and deceptive conduct and unconscionable conduct in contravention of ss 18 and 21 of the Australian Consumer Law (ACL), being Sch 2 to the Competition and Consumer Act 2010 (Cth). United claimed that as a result of the conduct of the respondents it had suffered loss, being a “disruption to its business”. That loss was never particularised. Instead, United pleaded that further particulars of its loss would be provided after discovery and return of subpoenas.

4    At the first case management hearing on 26 July 2024 United sought leave to file an amended statement of claim. I declined to make that order in the absence of a draft pleading. I made an order for service of a proposed amended statement of claim and for a procedure for the respondents to consider the proposed amendments and for United to make an interlocutory application in the absence of consent. The times fixed by the order were subsequently extended. In the result, United filed an amended statement of claim on 6 November 2024 with the consent of the respondents. The amended statement of claim was also endorsed with a certificate by United’s solicitor that the factual and legal material available to him provided a proper basis for each allegation in the pleading.

5    The next stage was discovery. The parties did not agree on the scope of discovery and whether discovery should occur before or after affidavit evidence was filed. United made an interlocutory application for discovery that was heard on 26 March 2025. During the course of that hearing I raised with counsel for United several questions about the state of United’s pleadings and the causes of action that had been alleged and I noted that some of the causes of action had been pleaded in United’s reply. I made an order for discovery before evidence and determined the scope of discovery by identifying the categories: United Petroleum Pty Ltd v Bomma [2025] FCA 283.

6    Following discovery, the proceeding was referred to mediation but did not settle.

7    On 4 September 2025, United obtained leave to issue subpoenas that were directed to three banks seeking the production of bank statements relating to accounts held by the respondents.

8    On 2 December 2025, orders were made by consent in Chambers which provided for a timetable for United to serve a proposed further amended statement of claim which was initially due by 23 January 2026. The orders also provided for a timetable for the respondents to consider the proposed amendments and for United to make an interlocutory application in the absence of consent. On 25 February 2026, that timetable was extended by consent with United being required to file any application for leave to amend by 11 April 2026.

9    On 8 April 2026, United lodged an interlocutory application for leave to file a further amended statement of claim which was initially listed for 24 April 2026. The respondents then filed a cross application seeking to have the amended statement of claim struck out and summary judgment. I then vacated the hearing date and made orders for the filing of affidavits, submissions, and for the parties to confer and to provide to my Chambers a joint estimate of the time required to hear both applications. The parties provided a joint estimate of one day following which I fixed the hearing for 29 July 2026.

10    United and the respondents filed written submissions in relation to both applications. In relation to their application to strike out the amended statement of claim and for summary judgment, the respondents relied on their written submissions dated 28 April 2026. The respondents’ written submissions set out a series of claimed fatal defects with United’s causes of action. United filed written submissions in response dated 18 May 2026 in which it contested the respondents’ claims that the amended statement of claim should be struck out and that there should be summary judgment.

11    The course of the hearing of the parties’ interlocutory applications is recorded in the reasons for judgment published on 4 August 2026. As stated at J [3], after the luncheon adjournment United accepted that the amended statement of claim should be struck out and did not press its application to file a further amended statement of claim and further amended originating application in the form then before the Court.

12    The remaining issue was whether there should be summary judgment or whether United should have an opportunity to replead. I expressed concerns throughout the reasons for judgment as to whether there was a proper basis for United’s claims and I expressed a tentative view at J [5] that it was very tempting to make an order that would bring the proceeding to an end. I determined that on the material before the Court United should not have leave to replead, but I adjourned the application for summary judgment. Against this background, I gave United an opportunity to make a further application for leave to file a further amended statement of claim but required that any application be filed by 4.00 pm on 25 August 2026 failing which the proceeding would stand dismissed. I ordered that any further application should be supported by an outline of submissions and one or more affidavits deposing to the basis of United’s proposed claims which annexed a draft pleading and a certificate signed by a partner of United’s solicitors which certified that the factual and legal material available to the partner provided a proper basis for each allegation and claim for relief in the proposed pleading and originating application. I also ordered that by 4.00 pm 11 August 2026 the solicitors for the parties were to confer in relation to the future of the proceeding.

United’s application for enlargement of time

13    Shortly after midday on 25 August 2026, United’s solicitors sent an email to my Chambers with a draft order seeking an enlargement of time by two weeks until 8 September 2026 within which to make an application to file a further amended statement of claim and originating application. The email included what amounted to submissions in support. The email was sent in the knowledge that the respondents opposed any application for an extension of time, which was stated in the email. United’s solicitors contemplated that I might make these orders in Chambers but also stated that “United is available to appear in relation to the extension, should His Honour wish to hear from it”, and identified the filing of a formal application as a further alternative. It is not apparent that the respondents’ solicitors consented to the sending of this email.

14    The email from United’s solicitors provoked an email in response from the respondents’ solicitors in which they confirmed their opposition to the extension of time. My Chambers responded to the parties, stating that the Court would not entertain an application for an extension of time by email, and that United should file a formal interlocutory application and a supporting affidavit as required by r 17.01 of the Federal Court Rules 2011 (Cth).

15    At 3.48 pm on 25 August 2026, United lodged its formal application for an extension of time together with a supporting affidavit of its solicitor affirmed on 25 August 2026. By order made 25 August 2026, I fixed the application for hearing for Friday 28 August 2026.

16    The hearing fixed for 28 August 2026 did not proceed because the parties sought an adjournment. The adjournment was evidently required to enable the respondents to respond to written submissions and a second affidavit by United’s solicitor, both filed 28 August 2026. The hearing was adjourned to 9 September 2026, and directions were made for the filing by the respondents of submissions and evidence in response to the application.

17    On 8 September 2026, United lodged for filing an application for leave to file a further amended originating application. That application has not been accepted for filing and has not been given a hearing date. United lodged it outside the time that had been fixed by the orders made 4 August 2026, which time has not been extended.

18    United also filed on 8 September 2026, being the day before the adjourned hearing of this application, a third affidavit of United’s solicitor. Together with its annexures, the third affidavit comprised 1,547 pages. That affidavit purported to depose to the matters required by the orders made on 4 August 2026 in the event that United filed an application for leave to amend, namely the basis of United’s proposed claims.

19    The hearing fixed for 9 September 2026 did not proceed. The parties submitted draft consent orders providing that the hearing be re-fixed to 30 October 2026 and providing for further written submissions and evidence. I made orders in Chambers on 9 September 2026 substantially in the terms sought by the parties. One of the orders that was made at the request of the parties was –

3.    An order that no further evidence or submissions be filed by the applicant in support of its application, after 22 September 2026, without leave of the Court.

20    I also ordered that written submissions be limited to five pages.

21    United filed a further outline of submissions in this application of five pages on 22 September 2026. United also filed on 22 September 2026 a seven-page submission directed to its purported application for leave to amend. No provision had been made for these submissions, no leave had been given to file them, and on 29 September 2026 I directed pursuant to r 2.28 that they be removed from the Court file. Even had the submissions been filed within the time permitted by the orders made 4 August 2026, the submissions did not comply with the orders made 4 August 2026 because they exceeded the five-page limit provided for. The vices in United filing irregular submissions without leave of the Court were that the filing was ostensibly contrary to the orders made on 9 September 2026 and there was no provision in any orders for the respondents to respond to those submissions.

22    I subsequently reconsidered the position and on 13 October 2026 gave leave to United to file a submission in support of its proposed application for leave to amend its originating application and statement of claim, limited to five pages, and enlarged the respondents’ page limit for their submissions on this application to 10 pages.

The factual basis for the application to extend time

23    The affidavits of United’s solicitor depose to the following relevant events –

(a)    On Wednesday 5 August 2026, United’s solicitor informed United about the terms of the orders that had been made the previous day. United’s solicitor further deposes that given the serious concerns that the Court had raised about United’s claim, he informed United that he considered it necessary to obtain an opinion from senior counsel about any further information prior to filing a further leave application.

(b)    There is no evidence that United responded to the solicitors until Friday 21 August 2026. This is in a circumstance where United and its solicitors knew of the 25 August 2026 deadline for making any application.

(c)    United’s solicitor deposed that on Friday 21 August 2026, he received further information from United about the loss and damage it alleges it had suffered, he received instructions to pursue a further leave application, and that he received instructions to brief senior counsel.

(d)    On Monday 24 August 2026, United’s solicitors briefed senior counsel to provide an opinion. United’s solicitor also received further information from United regarding the factual basis for its claims and the loss and damage it alleges that it has suffered.

(e)    The content of the information that United gave to its solicitors on 21 and 24 August 2026 is not the subject of direct evidence. However, in the solicitor’s second affidavit affirmed 28 August 2026 the following was stated –

5.    In my previous affidavit I said that United had provided me with further information regarding the loss and damage that United alleges that it has suffered. In order to provide that information to me, United was required to review and extract raw data held on its systems and then compile the relevant information for Seyfarth and United’s counsel to provide advice about calculation of its loss and damage in the proceeding. I have been informed by David Szymczak, Chief Executive Officer of United, and believe that this was a manual process that had to be done site by site and period by period and that United does not have the capacity to extract the relevant raw data or run a report to generate the required information automatically.

6.    The process of obtaining relevant information to provide advice about the calculation of United’s loss and damage is a time consuming and iterative process that involves assessing the information provided by United, reviewing further information to validate the data, and requesting United to review and extract other raw data from its systems and compile the additional relevant information.

(f)    On 26 August 2026, the respondents served a “Notice to produce a document in a pleading or affidavit” on United. The respondents sought inspection of the further information regarding United’s loss and damage and the factual basis for United’s claims referred to in United’s solicitor’s affidavit affirmed 25 August 2026. The notice to produce was in Form 39 which is provided for by r 20.31. It did not require production to the Court but engaged the procedure for a response within 4 days under r 20.31(2). United objected to production. There is no application by the respondents for an order for production under r 20.32 and therefore it need not be considered further.

(g)    United’s solicitor deposed that his firm was currently evaluating the further information provided by United but had not been able to conclude its assessment of the material at the time the application for the extension of time had been filed.

(h)    By 8 September 2026, United had prepared a proposed further amended statement of claim and the lengthy affidavit that purported to depose to the matters required by the orders made on 4 August 2026.

24    Counsel for the respondents did not seek to cross-examine the applicant’s solicitor on his affidavits. As to the hearsay representations made in the affidavits on the basis of information given by Mr Szymczak, the Chief Executive Officer of United, no application was made on the ground that a request had been made that he give evidence: see ss 166(f) and 169 of the Evidence Act 1995 (Cth); Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 at [62]–[63] (Rares, Wigney and Bromwich JJ). As a result, the affidavit evidence as to the relevant facts was unchallenged.

The differences between United’s proposed pleadings

25    There are distinct differences between United’s amended statement of claim and its proposed further amended statement of claim that were before the Court at the hearing on 29 July 2026, and the proposed further amended statement of claim that United would now seek leave to file if time were enlarged to make an application for leave. Most of the causes of action previously alleged are not pursued. In summary –

(a)    United would no longer pursue any claim against the second respondent;

(b)    United would no longer pursue claims that the first respondent (Mr Bomma) breached equitable duties that were alleged to be owed to United;

(c)    while United would seek to maintain claims that Mr Bomma engaged in misleading or deceptive conduct towards persons other than United in contravention of the ACL, United does not allege that it suffered any loss as a result of that conduct, and seeks only a declaration and an injunction;

(d)    United would not pursue a claim that Mr Bomma engaged in any misleading or deceptive conduct directed to United;

(e)    United would no longer pursue a claim that Mr Bomma engaged in unconscionable conduct in contravention of s 21 of the ACL;

(f)    United would no longer pursue claims that Mr Bomma was liable to United for breach of contract;

(g)    claims that Mr Bomma committed torts of inducing breach of contract would be pursued, but in a significantly different form;

(h)    United would seek to introduce new claims of conspiracy to injure, including conspiracy to injure by unlawful means; and

(i)    the basis on which loss and damage is alleged contains more detail than the “disruption to its business” which was all that United had previously pleaded.

The respondents’ submissions

26    The respondents submitted that the application should be refused, both on case management grounds and because the proposed pleading still disclosed no viable cause of action against them. They submitted that the applicable principles are those stated in Nassif v Harbour Radio Pty Ltd [2024] FCA 466 at [43]–[44] (Abraham J). Applying those principles, they submitted that the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) tells against reinstatement. They submitted that more than two years after commencing the proceeding, United had been given a final opportunity to plead a viable case, and it failed to take it. The respondents submitted that the purpose of the self-executing order would be defeated if it could be disregarded in the expectation that it would be set aside on request. They also submitted that there was no explanation by United as to why it had only begun to investigate the viability of its claims so long after commencing the proceeding, and that the dilatory briefing of senior counsel was no reason for further time.

27    As to the proposed pleading, the respondents submitted that it suffers from the same defects as earlier versions, and that it does not connect any conduct of Mr Bomma to the loss claimed. That loss is said to be the difference in the fuel commission, licence fee and repairs levy. It was submitted that on United’s own case, those terms were negotiated by employees of United and approved by Mr Szymczak. It was submitted that Mr Bomma was not alleged to have negotiated or proposed the terms, or even to have known what they were. The respondents made several further points going to claimed defects in United’s proposed pleading.

Should an extension of time be granted?

28    The only application before the Court is United’s application for an extension of time within which to seek leave to file a further amended pleading and originating application and to reinstate the proceeding.

29    In determining whether to exercise the power under r 1.39 of the Federal Court Rules 2011 (Cth) to extend the time provided for by the order made 4 August 2026, r 1.39 must be interpreted and applied, and the power thereunder exercised or carried out in the way that best promotes the overarching purpose provided for by s 37M of the Federal Court of Australia Act. The overarching purpose includes the following objectives –

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

30    In addition to the express mandatory consideration to give effect to the above objectives, it is relevant to consider United’s conduct, its reasons for seeking an extension of time, and whether a refusal of the extension would result in injustice to it.

31    United’s conduct and the cause of the application to seek an extension of time are relevant for the reasons explained in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), which concerned a late application to amend a statement of claim against rules which were analogous to Part VB of the Federal Court of Australia Act –

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by [the analogue to Part VB] to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.

(Emphasis added.)

32    As to the quality of evidence that may be required, in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; 332 ALR 199, Gilmour, Perram and Beach JJ discussed the nature of the explanation to be given where a party seeks the exercise of a discretionary power to make an order that would affect the way in which a case is managed. They noted at [154] that the nature of the explanation will depend on the circumstances of the case and must be given by the moving party. They then said –

155    It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.

156    Evidence as to the explanation for delay will often be given by an applicant’s solicitor from their own knowledge but that may, in some cases, not be sufficient. …

(Emphasis added.)

33    In this case, no officer of United has gone on oath to explain what occurred between 4 August 2026, when the self-executing order was made, and Friday 21 August 2026 when United’s solicitor says he received further information from United and instructions to brief senior counsel. It appears that United’s solicitor acted diligently in drawing United’s attention to the terms of the 4 August 2026 orders, but there is no direct evidence from United itself as to what it did over a period of more than two weeks after being advised of the terms of the orders. United’s approach to the Court’s orders sits with the background circumstances of this proceeding, which include the following features –

(a)    the Court raised several issues concerning the state of United’s pleadings with counsel then appearing for United at the interlocutory hearing on 26 March 2025;

(b)    from 28 April 2026 United was in possession of considered written submissions of counsel for the respondents which gave United clear notice of the claimed defects in its case that supported the respondents’ application for summary judgment;

(c)    at the hearing on 29 July 2026, United accepted that its amended statement of claim should be struck out, and it abandoned its application for leave to file a further amended statement of claim in the form then before the Court;

(d)    United must be taken to have accepted from 29 July 2026 the general nature of the problems with its pleaded case, and of the need to review its position;

(e)    if there were any residual doubt that there were difficulties with the form of United’s pleaded case, the difficulties were adverted to in the Court’s reasons given 4 August 2026 in which the Court described this proceeding as having “languished under the weight of the applicant’s unsuccessful attempts to plead a viable case”; and

(f)    United’s solicitor understood that the Court had raised serious concerns about United’s claim, because he deposed to that fact and to his advice to United that it was necessary to obtain the opinion of senior counsel.

34    While the quality of evidence that United has adduced may be the subject of some criticism, any criticism must be balanced against the fact that the evidence, as far as it went, was not challenged by cross-examination. The picture painted by that unchallenged evidence is that, although there is a degree of imprecision about what occurred, United went about collating information and providing instructions to its solicitors. That work is to be seen in the context that the Court’s criticisms of United’s pleading of its case in the reasons for judgment of 4 August 2026 were made clear, and the orders that were made were onerous and placed explicit obligations on United’s solicitors to verify by evidence a proper basis for a proposed pleading. The period of 21 days for the self-executing order was chosen by the Court, without the benefit of submissions from the parties on an appropriate period of time.

35    I now turn to the question of injustice. United lodged its interlocutory application to extend time minutes before the time within which to make an amendment application expired. In FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 at 283, Wilson J, with whom Brennan, Deane and Dawson JJ agreed, said of the power to extend time to comply with a self-executing order after the time for compliance had passed –

It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.

(Emphasis added.)

36    The injustice that United would suffer would be the lost opportunity to bring an application for leave to file a further amended statement of claim, which was an opportunity that I determined that it should have by the orders made 4 August 2026. As to the value of that opportunity, the respondents have advanced cogent submissions directed to claimed defects in the proposed pleading. This is not the occasion to consider those submissions in detail. Rather, the correct approach is to form an impressionistic view of the prospects of the application for leave to amend. My impressionistic view is that there may be merit in some aspects of the claims United now proposes to advance, but the merit and the form of others is contestable. There is also a likelihood of discretionary considerations that might bear upon whether leave to amend should be given and if so to what extent and on what terms. Overall, while as a matter of impression some of the proposed claims appear to be ambitious, I am not persuaded that the prospects of the proposed application for leave to amend are so poor that granting the extension of time sought by United would be futile.

37    While I consider that United’s explanation for its failure to file an application within the 21-day period lacks detail and could have been better, on balance I consider that I should look at the matter broadly and on the basis that the evidence adduced by United on this application was not challenged by cross-examination. In overview, the material now filed on behalf of United must have been the product of a considerable amount of work over a period of weeks and I conclude that, although not all the time after the making of the order of 4 August 2026 has been satisfactorily accounted for, United has now presented a viable application for leave to amend. The deficiency in accounting for the delay is not in itself a matter which swings the balance against granting United the extension of time which it seeks.

38    I will grant the extension of time sought and formulate orders to reinstate the proceeding. I will hear the parties on costs.

Associate:

Dated:    30 October 2026