Srbinovska and Srbinovska and Anor

This matter concerned an application by Ms A Srbinovska to set aside orders made in her absence by Foster J on 30 July 2014. The application was heard by Le Poer Trench J in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the discretion to set aside orders made in default of a party's appearance had been exercised incorrectly by the Federal Magistrate. Specifically, the court considered whether the Federal Magistrate erred in dismissing Ms Srbinovska's application to set aside the previous orders, having regard to the explanation for her failure to appear, the possibility of a different outcome, and prejudice to the other party.

Le Poer Trench J, agreeing with the Full Court's reasoning, found that the discretion to set aside default orders is unfettered. The court applied the principles that regard must be given to the explanation for non-appearance, the potential for a different result, and prejudice to the other party. Ms Srbinovska failed to provide an adequate explanation for her absence or to demonstrate that a different outcome would likely have resulted had she appeared. Furthermore, she failed to address the significant prejudice to Mr Srbinovska, the first respondent. Consequently, the court found no error in the Federal Magistrate's approach and determined that Ms Srbinovska had not established a "miscarriage of justice" as required by s 79A(1)(a) of the relevant legislation.

The application filed by Ms A Srbinovska on 3 September 2014 was dismissed. Ms Srbinovska was ordered to pay the costs of Mr S Srbinovska in defending that application. Additionally, Ms A Srbinovska and Mr R Srbinovska were ordered to jointly and severally pay Mr S Srbinovska's costs associated with his application that led to the orders made on 30 July 2014.