Fewin Pty Limited v Prentice (No 2)

The case of Fewin Pty Limited v Prentice (No 2) involves an application by the applicants to set aside interlocutory orders made by the Court on 8 June 2018. The applicants sought to amend their statement of claim and set aside the orders that this proceeding be stayed until the applicants paid a Costs Order and that the applicants pay the respondent’s costs of the Stay Application. The Full Court of the Federal Court of Australia had previously delivered a judgment in a related proceeding, NSD1137/2017, which influenced the Court’s decision in this case. The primary issue before the Court was whether the interlocutory orders should be set aside under section 23 of the Federal Court of Australia Act 1976 (Cth) and rule 39.05(c) of the Federal Court Rules 2011 (Cth).

The Court considered whether the June 2018 Orders were inconsistent with Order 3 of the NSD786/2015 Orders. The Court held that the applicants had not demonstrated good reason to set aside the June 2018 Orders. The Court emphasised that the applicants had the opportunity to lead evidence and make submissions in relation to the Stay Application, and that the June 2018 Orders, being interlocutory, carried an element of finality in relation to the issue with which they were concerned. The Court rejected the applicants' reliance on Patel v Minister for Immigration and Citizenship (No 4) (2012) 208 FCR 128, as the circumstances of this case did not involve orders for the filing of further evidence that were not brought to the Court’s attention.

Ultimately, the Court dismissed the interlocutory application filed by the applicants on 12 July 2018 and ordered that the applicants pay the respondent’s costs. The Court’s reasoning was grounded in the principle that the applicants needed to demonstrate good reason to set aside the June 2018 Orders, a burden which they had not met. The decision underscores the importance of following proper procedural steps when seeking to set aside interlocutory orders in the Federal Court of Australia.

ORDERS:
1. The interlocutory application filed by the applicants on 12 July 2018 be dismissed.
2. The applicants pay the respondent’s costs.