Igbinoba v Commonwealth of Australia (No 4)
[2025] FedCFamC2G 265
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Igbinoba v Commonwealth of Australia (No 4) [2025] FedCFamC2G 265
File number(s): SYG 2321 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 27 February 2025 Catchwords: PRACTICE AND PROCEDURE –Application to vacate final hearing to allow further time to retain new lawyer and obtain further evidence – whether applicant able to retain new lawyer for hearing – whether applicant has satisfactorily disclosed content of further evidence – whether applicant has provided satisfactory explanation in support of application – whether prejudice to respondent – – application dismissed Legislation: Evidence Act 1995 (Cth) s 131(1)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 5(a), s 190, s 190(4)(a)
Racial Discrimination Act 1975 (Cth) s 9(1), s 11(1), s 18C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 10.01(3)(r), r 10.01(3)(s), r 22.09
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2013) 239 CLR 175
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 25 February 2025 Place: Parramatta Applicant: In person Counsel for the Respondent: Mr A Hall by video link Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 2321 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OKUNGBOWA HUBERT IGBINOBA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of and associated with the application to vacate the final hearing as agreed or assessed.
2.The applicant has leave to apply to the Court to vary order 1, such application to be notified to the Court and respondent within 14 days from today and to be considered at the hearing commencing on 19 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 17 February 2025, I directed that an application by the applicant to vacate the final hearing on 19 March 2025 (Vacation Application), which the applicant requested in emails to chambers in the preceding week, be listed for hearing before me on 25 February 2025.
On 25 February 2025, I heard the Vacation Application. At the end of the hearing, I made an order dismissing the application. I told the parties that I would publish reasons by 28 February 2025. This judgment contains my reasons.
LEGISLATION AND PRINCIPLES
Section 5(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that one of the Court’s objects is “to ensure that justice is delivered by federal courts effectively and efficiently”.
Section 190 of the FCFCOA Act, titled “Overarching purpose of civil practice and procedure provisions”, states:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(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;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Under r 10.01(3)(r) and (s) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules), the Court may make orders or directions in relation to hearing dates and any other matter considered appropriate, and therefore has power to adjourn proceedings if it sees fit to do so. Those paragraphs are civil practice and procedure provisions referred to in s 190(4)(a) of the FCFCOA Act.
As stated in Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [4], in considering an application for adjournment:
(a)the Court has broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration [2014] FCCA 1309 at [9] –[10] per Judge Lucev; and
(b)the Court’s paramount consideration must be the interests of justice. To this end, this Court has, in determining adjournment applications had regard to the following principles in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk Services”) at [30] per French CJ and [97]–[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ:
(i) that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
(ii) modern principles of case management;
(iii) the avoidance of undue delay; and
(iv) the wastage of public resources, …
EVENTS LEADING UP TO HEARING OF VACATION APPLICATION
In October 2020, the applicant commenced this proceeding by filing an application. In October 2021, the applicant filed a statement of claim. In July 2022, he filed an amended statement of claim (ASC). In general, he pleads in the ASC that:
(a)On each of 32 occasions that he entered Australia between 1998 and 2020, he was questioned by officers of Australian Border Force (ABF), temporarily detained, and had his luggage emptied, searched and inspected.
(b)The conduct of the officers of ABF in sub-paragraph (a) involved unlawful discrimination against the applicant in contravention of ss 9(1), 11(1) and 18C of the Racial Discrimination Act 1975 (Cth) (RD Act).
The applicant seeks relief in the ASC including:
(a)a declaration that the respondent contravened ss 9, 11 and 18C of the RD Act;
(b)an order restraining the respondent from further unlawfully discriminating against the applicant; and
(c)an order that the respondent compensate the applicant.
In August 2022, the respondent filed a defence.
It was agreed between the parties that the respondent would serve its evidence in chief before the applicant. On 13 July 2023, the respondent filed and served its evidence in chief. On 18 June 2024, the applicant filed and served his evidence in chief, comprising an affidavit of the applicant dated 18 June 2024. On 30 October 2024, the respondent filed evidence in reply, comprising affidavits from 13 witnesses.
On 3 December 2024, a judge of this Court made procedural orders by consent, including that the matter be listed for final hearing on 19 to 21 and 24 to 25 March 2025 (March 2025 Hearing).
Between the commencement of the proceeding and early 2025, there was a solicitor on the record for the applicant. On 11 February 2025, that solicitor (Former Solicitor) filed a notice of withdrawal as lawyer. The notice attached a notice of intention to withdraw as lawyer dated 3 February 2025 which the Former Solicitor certified she served on the applicant by 4 February 2025.
On 11 February 2025, the applicant sent an email to my chambers stating that he wanted to vacate the March 2025 Hearing to allow him time to brief a new legal team and prepare and file further evidence. In circumstances where the applicant was now unrepresented, I treated the email as a request to vacate the hearing date without requiring the applicant to file an interlocutory application. Following further email communications between chambers and the parties, on 17 February 2025 I made the following orders in chambers by consent:
1.An application by the applicant to vacate the final hearing commencing on 19 March 2025 is listed for hearing at 9:15 am on Tuesday 25 February 2025 before Judge Zipser.
2. The parties may appear by video link at the hearing of the application.
3.The applicant shall file and serve evidence and a written submission in support of the vacation application by 4:00 pm on Wednesday 19 February 2025.
4.The respondent shall file and serve evidence (if any) and a written submission in opposition to the vacation application by 4:00 pm on Friday 21 February 2025.
On 20 February 2025, the applicant sent an email to my chambers stating that, in relation to the materials he was required to file and serve by 19 February, he would file and serve the materials by 24 February 2025. The respondent did not consent to this delay.
On 21 February 2025, the respondent filed and served:
(a)an affidavit of Paul Barker sworn on 21 February 2025 containing evidence in opposition to the Vacation Application; and
(b)a written submission.
Around 3 pm on 24 February 2025, the applicant filed and served:
(a)an affidavit of the applicant sworn on 24 February 2025 containing his evidence in support of the Vacation Application (Vacation Affidavit); and
(b)a written submission.
The applicant’s late service of materials limited the ability of the respondent and the Court to carefully consider the materials prior to the hearing on the morning of 25 February 2025.
HEARING OF VACATION APPLICATION
On 25 February 2025, the hearing of the Vacation Application commenced shortly after 9:15 am. The applicant appeared in person. Anthony Hall of counsel appeared by video link for the respondent.
I read:
(a)the Vacation Affidavit, other than paragraph 14 and Annexure OHI-4 which I ruled as inadmissible on application of s 131(1) of the Evidence Act 1995 (Cth); and
(b)the affidavit of Mr Barker.
The applicant then made oral submissions. During the submissions, the applicant asserted some matters of an evidentiary nature concerning communications with the Former Solicitor which were not in the Vacation Affidavit. I refer to these communications further in paragraph 48 below.
As explained below, I consider that the applicant’s evidence in the Vacation Affidavit in support of the Vacation Application is deficient and unsatisfactory in a number of respects. To assist in considering the Vacation Application:
(a)One reason the applicant wanted to vacate the March 2025 Hearing was so that he could obtain “evidence from my co-travellers [which is] essential to substantiate my claims”: Vacation Affidavit at [7]. The applicant did not, in his affidavit or written submission, identify the co-travellers. I asked the applicant to identify the co-travellers. He provided names of eight people who he says are the “co-travellers” from whom he wants to obtain affidavits. Their initials are SC, JL, RE, CD, AF, GT, RN and JH. The applicant stated that SC was in the court room during the hearing on 25 February 2025.
(b)I asked the applicant whether the reason the Former Solicitor ceased to act for the applicant was because the applicant did not pay, or was unable to pay, an invoice of the lawyer, or was unable to transfer money into the lawyer’s trust account to cover future fees. The applicant replied “No”.
At the end of the hearing, I considered whether:
(a)to make an order determining the Vacation Application immediately, and publish reasons for my decision as soon as I could; or
(b)defer making an order determining the Vacation Application until I had prepared reasons.
In light of the approaching trial date, I considered it appropriate to make an order determining the Vacation Application immediately, and publish reasons for my decision as soon as I could.
CONSIDERATION
For the following reasons, at the conclusion of the hearing on 25 February 2025, I dismissed the Vacation Application.
First, one reason on which the applicant relied in support of the Vacation Application was that he wants to retain a new lawyer for a final hearing of the proceeding.
Based on the evidence before the Court, it is unclear why the applicant has not yet retained a new lawyer. The applicant states the following in the Vacation Affidavit at [11] concerning his efforts to obtain a new lawyer:
I confirm that Ms Otavski withdrew as my solicitor on 11 February 2025, with notice served on 3 February 2025 (Barker affidavit, para 9). Since that date, I have been self-represented and am actively seeking new counsel, including engaging with Mr Tarrek Naji of McLachlan Thorpe Partners, as referenced in correspondence annexed to the Barker Affidavit (PB-2, para 13). However, I require additional time to formalise this representation and instruct counsel adequately, given the complexity of the matter spanning over 24 years. At the present time, Mr Tarrek Naji of McLachlan Thorpe Partners has not been formally retained as counsel in this proceeding.
In relation to the reference to Mr Naji, annexed to the applicant’s affidavit is:
(a)an email from the Former Solicitor to Mr Naji dated 10 February 2025 stating in part:
On Thursday 6 February 2025 we were informed that you are now engaged by the above named in proceedings currently before the Federal Circuit and Family Court of Australia. Could you kindly confirm that this is the case?
(b)an email from Mr Naji to the Former Solicitor dated 11 February 2025 stating in part:
I am not presently engaged by Mr Igbinoba in that matter.
I infer from the evidence before the Court that, since at least 6 February 2025, the applicant communicated with Mr Naji about Mr Naji acting for the applicant in the proceeding. I also infer that on 6 February 2025 the applicant said words to the Former Solicitor which caused her to believe that the applicant had engaged Mr Naji.
The applicant did not provide evidence in the Vacation Affidavit as to why he had not engaged Mr Naji or any other lawyer by 25 February 2025. The applicant did not state in his affidavit that he was or has been unable to engage a new lawyer following the withdrawal of the Former Solicitor.
The applicant has not identified, either in his affidavit or oral submissions on 25 February 2025, any impediment which prevented him from engaging a lawyer:
(a)by 25 February 2025 for the March 2025 Hearing; or
(b)for the preparation and hearing of the Vacation Application on 25 February 2025.
As stated above, at the hearing on 25 February 2025, the applicant told the Court that he has paid all invoices of the Former Solicitor. The applicant has not suggested that he is unable to afford to engage a lawyer for the March 2025 Hearing.
Based on the evidence before the Court:
(a)I am not persuaded that the applicant has been or is unable to retain a lawyer for the March 2025 Hearing.
(b)I consider that the applicant could, if he wished to do so, have retained a lawyer by 25 February 2025 for the March 2025 Hearing.
Second, a second reason the applicant advanced in support of the Vacation Application was that he needs time to obtain “critical affidavits and evidence from co-travellers – essential to substantiate my claims”: Vacation Affidavit at [7]. In considering this reason, the following questions arise:
(a)What is the nature, scope or subject-matter of the proposed further evidence from the “co-travellers”?
(b)Does the proposed further evidence fall within the scope of the pleading in the ASC?
(c)Even if the proposed further evidence falls within the scope of the pleading in the ASC, in the context of an application to vacate a hearing date which is likely to cause prejudice to the respondent, to what extent is the evidence relevant or important to the applicant’s case?
(d)How long would it take the applicant to prepare the evidence?
(e)Would the respondent want or need to prepare further evidence in reply and, if so, to what extent?
(f)Why did the applicant not obtain and serve the proposed further evidence by June 2024?
(g)Why did the applicant wait until February 2025 before informing the Court and the respondent that he wants to obtain, file and serve the proposed further evidence?
In relation to the matter in paragraph 33(a), the Vacation Affidavit states at [7] that the further evidence will be from “co-travellers”. The affidavit at [12] - [13] states that “co-traveller evidence” will “address the ABF’s actions on 19 November 2021, the allegedly invalid search warrant, and the respondent’s failure to explain its discriminatory conduct since 1998”.
In relation to the applicant’s reference to “co-travellers”, the ASC lists 32 occasions between 1998 and 2020 on which the applicant entered Australia and claimed to have been detained and interrogated by ABF officers. The applicant’s affidavit dated 18 June 2024 provides the applicant’s recollection of each occasion. For each entry into Australia, the applicant records whether he was with a co-traveller. According to the affidavit:
(a)On entry into Australia on 13 August 1999, he was with AF.
(b)On entry into Australia on 15 July 2002, he was with RN.
(c)On entry into Australia on 23 October 2007, he was with RE.
(d)On entry into Australia on 1 July 2009, he was with CD.
(e)On entry into Australia on 10 July 2011, he was with GT.
(f)On entry into Australia on 15 January 2019, 13 October 2019 and 16 January 2020, he was with JL.
Based on the applicant’s evidence in support of the Vacation Application, it appears that the reference to “co-travellers” in the Vacation Affidavit is a reference to persons who entered Australia with the applicant on various occasions between 1998 and 2020.
In relation to the matter in paragraph 33(b), first, based on the very limited description given by the applicant concerning the nature, scope or subject-matter of the proposed further evidence, neither the respondent nor the Court can assess whether the proposed further evidence falls within the scope of the pleading in the ASC. Whether or not the evidence falls within the scope of the pleading in the ASC is relevant in considering whether the March 2025 Hearing should be vacated to allow the applicant to obtain the evidence. Second, the applicant states in his written submission at [20] that he “propose[s] to file additional evidence … to address the ABF’s actions on 19 November 2021, [and] the use of an allegedly invalid search warrant”. These matters do not appear to be pleaded in the ASC. Third, SC and JH are not listed as co-travellers in the applicant’s affidavit dated 18 June 2024. Their evidence may also fall outside the case pleaded in the ASC. I am concerned that the applicant, in seeking to vacate the March 2025 Trial, may want to expand the scope of his case against the respondent beyond the case pleaded in the ASC. If the applicant wants to expand the scope of his case against the respondent, he should have:
(a)disclosed this matter in the Vacation Affidavit; and
(b)explained why, in circumstances where he commenced the proceeding in 2020, he wants to expand the scope of the case one month before the commencement of a five day trial – see discussion in Aon Risk Services Australia Ltd v Australian National University (2013) 239 CLR 175 (Aon) in paragraphs 45 and 46 below.
In relation to the matter in paragraph 33(c), first, AF, RN, RE, CD and GT were co-travellers between 1999 and 2011. If the applicant wants to obtain evidence from them to corroborate his claims concerning events on the specified days, there is a real question as to whether they would recall their entry into Australia with the applicant on the claimed dates or, if they recall the event, whether they recall any details relevant to the applicant’s claims against the respondent. Second, the applicant states in the Vacation Affidavit at [12] and [13] that the co-travellers will give evidence “which addresses the ABF’s actions on 19 November 2021, the allegedly invalid search warrant, and the respondent’s failure to explain its discriminatory conduct since 1998”. It would be surprising if the co-travellers referred to in the applicant’s June 2024 affidavit could give admissible evidence concerning these matters. In summary, in circumstances where the applicant has not disclosed the evidence he expects each “co-traveller” will give, the respondent and the Court are unable to evaluate whether the evidence is relevant or important to the applicant’s case. The relevance or importance of the evidence is relevant in considering whether the March 2025 Hearing should be vacated to allow the applicant to obtain the evidence.
In relation to the matter in paragraph 33(d), the applicant states in his written submission at [22] that he wants “an adjournment of at least three months to enable me to retain new legal representation and adequately prepare my case”. I note that this is a minimum time, rather than an outer limit.
In relation to the matter in paragraph 33(e), the extent to which the respondent might be prejudiced by the further evidence:
(a)is relevant in assessing whether the Court should accede to the Vacation Application; and
(b)depends on the content of the further evidence.
But the applicant has not disclosed the content of the further evidence.
In relation to the matters in paragraph 33(f) and (g), the applicant states in the Vacation Affidavit at [7]:
Upon reviewing the evidence filed by my former legal representative, I discovered that critical affidavits and evidence from my co-travellers … were omitted. When I raised this with counsel Christopher Parkins, he confirmed he was unaware of this evidence due to a failure of communication by my former solicitor.
The applicant adds at [12] that “the omission of co-traveller evidence – only discovered after my review following counsel’s withdrawal – renders my case incomplete”.
The applicant has not stated in the Vacation Affidavit:
(a)whether, and if so when, he instructed the Former Solicitor to obtain evidence from co-travellers;
(b)whether the Former Solicitor agreed to obtain evidence from co-travellers;
(c)whether the applicant believed in June 2024 that the Former Solicitor had obtained and served affidavit evidence from co-travellers;
(d)if the applicant held the belief in (c), the circumstances in which he held the belief; and
(e)when the applicant carried out the review of evidence referred to in his affidavit at [7] and [12], and why he did not carry out the review in or shortly after June 2024.
In Aon, during the first few days of a four-week trial, the plaintiff applied for leave to amend its claim against a defendant. If leave was granted, this would necessitate an adjournment of the trial. There is a similarity between:
(a)a plaintiff’s application to amend a pleading which will necessitate an adjournment of a trial; and
(b)a plaintiff’s application to obtain and serve further evidence which will necessitate an adjournment of a trial.
The plurality at [51]-[53] described the explanation given by the plaintiff’s solicitor in an affidavit and under cross-examination for the amendment. Parts of the explanation involved a waiver by the plaintiff of client legal privilege. The plurality stated at [103], [106] and [108]:
[103]The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. 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 r 21 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. There can be no doubt that an explanation was required in this case.
…
[106]Given the requirements of the Rule and the effects associated with delay, it was incumbent upon ANU to tender an explanation as to why the matter had been allowed to proceed to trial in its existing form. It needed to explain why it was seeking leave to amend at the time of the trial, when the two insurer’s defences had identified the issue central to the claim it sought to bring against Aon more than 12 months earlier. None was given. His Honour was in error in accepting that ANU had provided a satisfactory explanation. The statements made by counsel foreshadowing leave to amend were not evidence …
…
[108]… The absence of explanation suggests the possibility that none which favoured ANU could be offered.
The applicant’s explanation in the present matter, by not adequately addressing at least some of the matters in paragraph 44 above, is deficient.
The applicant, in oral submissions on 25 February 2025, asserted additional matters concerning his communications with the Former Solicitor. However, first, matters asserted by a party in oral submissions are not evidence. Second, I am conscious of the fact that the applicant was unrepresented at the time he prepared the Vacation Affidavit. However, the applicant has not tendered any evidence, or suggested in an oral submission, that he was unable to retain a lawyer to help him prepare the Vacation Application. He also impressed me, through the content of the Vacation Affidavit, his written submission, his email communications to my chambers and his presentation at the hearing on 25 February 2025, as an intelligent and articulate person. I am not willing to treat a matter he asserts in a submission from the Bar table, which he chose not to include in the Vacation Affidavit sworn a day earlier, as evidence. Third, even if I accepted the matters asserted by the applicant in oral submissions as evidence, his explanation remains deficient.
Third, the Court, in considering whether to accede to a request by one party to obtain further evidence and vacate the hearing date, must consider prejudice to the other party. The affidavit of Mr Barker sets out prejudice the respondent would suffer. Mr Barker, after noting that the respondent has 21 witnesses, states at [8] that, based on his experience as a litigator, an adjournment of the hearing is likely to cause prejudice to the respondent including in the following ways:
(a)The work undertaken to prepare witness availability for the hearing will need to be done again, meaning the respondent’s time and resources directed to this in the last few months have been wasted.
(b)The longer time goes on, the greater chance there is that witnesses will have difficulty recalling the events described in their affidavits, which may prejudice the respondent’s ability to substantiate its defence.
(c)Costs will be incurred in having to re-prepare and re-read into the matter at a later date.
Mr Barker states at [22] and [23] that if the applicant is granted leave to file further evidence in chief and he files further evidence, the respondent will incur further costs in reviewing that evidence and may need to file further evidence in reply, which process may take several months and incur significant further costs for the respondent.
I accept that the respondent would incur prejudice as described above in Mr Barker’s affidavit.
Fourth, this proceeding was commenced in October 2020 and concerns events stretching back to 1999. There is considerable public interest in the proceeding being heard and determined expeditiously. If the March 2025 Hearing is vacated, there would be a further delay to the hearing date of many months – noting that the applicant requests an adjournment of “at least three months”, and the respondent says it may take several months to prepare any further evidence in reply.
Fifth, s 190(2)(c) of the FCFCOA Act requires the Court to consider “the efficient disposal of the Court’s overall caseload” in making procedural decisions to facilitate the just resolution of disputes. The Court has a busy case load, including a significant backlog of migration matters awaiting hearing dates. If the March 2025 Hearing is vacated and eventually relisted for a five day trial on a later occasion, this will have a negative impact on the efficient disposal of the Court’s overall caseload.
OPPORTUNITY TO FILE FURTHER EVIDENCE
At the hearing on 25 February 2025, after I stated that I would dismiss the Vacation Application, I offered the applicant an opportunity to serve affidavits or draft witness statements from one or more “co-travellers” referred to in paragraph 21 above by Monday 10 March 2025. I explained that, if the applicant serves affidavits or draft witness statements, the Court could consider whether leave could be granted to the applicant to rely on the evidence at the March 2025 Hearing. The applicant declined this offer, despite the fact that one “co-traveller” (SC) was in the court room supporting the applicant.
COSTS
Mr Hall asked for an order that the applicant pay the respondent’s costs in respect of the Vacation Application. It is appropriate that there be a costs order which reflects the fact that the applicant has failed in respect of this interlocutory application. One question is whether the applicant should pay the respondent’s costs or, alternatively, the respondent’s costs should be in the cause. In light of the significant deficiencies in the applicant’s evidence explained above, subject to one matter, I consider that the applicant should pay the respondent’s costs of and associated with the Vacation Application as agreed or assessed. The one matter is that r 22.09 of, and Schedule 2 to, the FCFCOA Rules refer to scale amounts for costs in general federal law proceedings in the Court. At the hearing on 25 February 2025, the applicability or otherwise of the scale amounts was not discussed. I will order that the applicant pay the respondent’s costs of and associated with the Vacation Application as agreed or assessed, but will grant the applicant leave to apply to vary this costs order, with any such application to be considered during the March 2025 Hearing.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 February 2025
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