Wu v Avin Operations Pty Ltd (No 2)

In Wu v Avin Operations Pty Ltd (No 2), Barry Armitage sought to appeal against the interlocutory orders made by the Court on 3 February 2006. The orders were made following a motion for default judgment by the applicant, Ms Wu, who claimed that the respondents had substantially delayed the proceedings and failed to comply with the Court's orders. The appeal was based on the ground that Mr Armitage and the other respondents had been denied natural justice as their legal representative was allowed to withdraw without them being given the opportunity to be heard. The Court had to determine whether the orders made in the absence of Mr Armitage were interlocutory and whether they could be set aside under Order 35 rule 7(2) of the Federal Court Rules 1979.

The Court found that the orders made on 3 February 2006 were interlocutory in nature as they did not conclude the rights of the parties inter se. Furthermore, Mr Armitage was absent from part of the hearing of Ms Wu's motion when his solicitor successfully obtained leave to withdraw. Therefore, the Court accepted that Mr Armitage could call in aid Order 35 rule 7(2)(a) and (c). However, the Court found that Mr Armitage did not provide sufficient evidence to establish fraud as required by Order 35 rule 7(2)(b). The Court held that the jurisdiction to set aside orders made after they have been entered is exceptional, and it is not open to Mr Armitage to rely on Order 35 rule 7(2)(b).

The Court set aside the orders in paragraphs [2] and [3] of the orders made on 3 February 2006 and made alternative orders, including that the first and second respondents pay the applicant's costs of the motion on an indemnity basis, and that the second respondent pay the applicant's costs of the respondent's motion. The Court also ordered that certain paragraphs of Mr Armitage's affidavit be struck out unless Mr Armitage made an application for leave to file and serve an amended defence and/or cross claim within 28 days.