Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2026] FCA 258

1. Claim of unconscionable conduct: In proceeding MLG1697/2023, the Applicant is contending that the Respondent engaged in unconscionable conduct, within s 21 of Sch 2 to the Competition and Consumer Act 2010 (Cth), towards the Applicant during its property management and performance of a residential tenancy agreement. The Applicant's claims are set out in a further amended statement of claim dated 24 November 2025.
2. Defence filed late (Dec 2025): On 16 December 2025, the Respondent filed a further amended defence (the Defence). The Defence was filed late: by orders made on 26 November 2025, it should have been filed and served by 5 December 2025. The 26 November orders also set the matter down for hearing on 27 April 2026.
3. Interlocutory application to strike out Defence (Dec 2025): On 16 December 2025, the Applicant filed an interlocutory application seeking to have the Defence struck out, for non-compliance with the 26 November 2025 orders. On 30 January 2026, the Respondent filed an affidavit sworn by James Kyrios, solicitor for the Respondent, which gave an explanation for the delay in filing the Defence (the solicitor involved had been delayed, partly because her child had been in hospital with suspected appendicitis: Anderson (No 2) at [1]).
4. Primary judge refuses to strike out Defence (3 Feb 2026): The interlocutory application was heard on 3 February 2026. The primary judge did not strike out the Defence, stating:

[T]he court wouldn't normally strike out a defence where there has now been an explanation given for the delay, and where it looks as though the ... respondent is ... keen to proceed with the matter properly. If there's any issue about timetabling, we can certainly amend the timetabling orders, but I wouldn't be striking out the defence in the circumstances of this case.

We're not here to be harsh or nasty. If there's a way of making everything move forward in a reasonable way, fairly to everyone, that's what we will go for. So if you need more time, just tell me what you need and we can look at that.

1. The primary judge asked whether the Applicant needed more time to file her material because the Defence was late. The Applicant stated that she wanted the hearing to progress on 27 April as scheduled. The Applicant stated that she needed to subpoena some documents, and the primary judge granted leave for the Applicant to issue up to five subpoenas without notice to the Respondent. The Applicant also stated that she did not wish to file a reply.
2. The primary judge made the following orders on 3 February 2026 (as amended pursuant to the slip rule):
   1. *The applicant's interlocutory application filed on 16 December 2025 be dismissed.*
   2. The applicant have leave to issue up to five subpoenas without notice to the respondent.
   3. Each party have liberty to apply.
3. Primary judge makes revised timetabling orders (6 Feb 2026): Following the 3 February hearing, the Applicant emailed chambers stating that she did wish to file a reply, and she did wish to amend the timetable, and proposed that the trial go ahead in July 2026 (Anderson (No 2) at [5]). There was another hearing on 6 February 2026, at which the primary judge made revised timetabling orders, but maintained the trial date of 27 April 2026. Her Honour gave the following reasons for that decision in Anderson (No 2):

[5] ... The court does not have any available dates in July. The next available date would be in October 2026. When the matter came on today, pursuant to the liberty to apply, the applicant indicated that she would be willing to accept the hearing date in October 2026. However, the respondent said that it was not willing to accept that date. The respondent said that having the litigation hanging over its head was difficult, and it wished to preserve the existing hearing date.

[6] The court then looked to see whether there could be a reasonable rejigging of the timetable, and it seemed to me that that could be achieved. The applicant strenuously opposed that. She said that she needed more time for various steps. However, it seems to me that the timeframes that have been allowed are reasonable in all the circumstances.

[7] The applicant said that, although she is unrepresented, she is getting legal advice from an external source. She said that it takes more time than usual to get that legal advice. That may be so, but it seems to me that, even allowing for that, there is adequate time for this hearing to proceed on 27 April 2026 and that the timeframes allow everyone adequate time.

[8] If the applicant does wish to issue subpoenas, even if there are any objections, there should be time for them to be dealt with, assuming that the applicant issues the subpoenas early next week, as she said she would do on Tuesday.

1. Interlocutory application for stay of 3 and 6 Feb orders (10 Feb 2026): On 10 February 2026, the Applicant filed an interlocutory application which sought a stay of the orders made on 3 February and 6 February 2026 pending the determination of her application for leave to appeal (and the appeal, if leave is granted) or, alternatively, that the trial date of 27 April 2026 and all consequential pre-trial timetabling orders be vacated or stayed pending determination of the appeal.
2. On 13 February 2026, the primary judge dismissed that application, for the reasons given in Anderson (No 3). Her Honour's reasons can be summarised as follows:
   • The Applicant's application to extend the timetable until July 2026 (and her opposition to the orders made on 6 February 2026) was, in effect, seeking an adjournment of the hearing. This application for leave to appeal was therefore barred by s 24(1AA)(b)(ii) of the Federal Court Act: Anderson (No 3) at [2].
   • There was no utility in staying the orders of 3 February 2026 (which dismissed the application to strike out the Defence): if the order were stayed, the Defence would remain on foot: Anderson (No 3) at [3].

The stay application was therefore dismissed: Anderson (No 3) at [4].

1. Application for leave to appeal (Feb 2026): On 9 February 2026, the Applicant applied for leave to appeal against the judgments of the primary judge given on 3 February 2026 and 6 February 2026. The grounds of the draft notice of appeal are as follows:

Ground 1 - Denial of Procedural Fairness (Course of Case Management)

The primary judge erred in denying the Applicant procedural fairness by adopting and maintaining a course of case management which, viewed as a whole, deprived the Applicant of a real and practical opportunity to prepare and present her case, including by:

(a) dismissing the Applicant's application to strike out the Respondent's amended defence notwithstanding established non-compliance with Court orders; and

(b) thereafter imposing a truncated pre-trial timetable to preserve the existing trial date,

in circumstances where the Applicant expressly contended that compliance was not practicable and that contention was not properly addressed or resolved.

Ground 2 - Error in Exercise of Discretion: Refusal to Strike Out (3 February 2026)

The primary judge erred in the exercise of discretion in dismissing the Applicant's application to strike out the Respondent's amended defence, where:

(a) the Respondent had failed to comply with Court orders requiring the amended defence to be filed and served by 5 December 2025;

(b) the non-compliance was admitted or established on the record and concerned pleaded matters central to the Respondent's defence of the unconscionable conduct claim; and

(c) the discretion was exercised without adequate reasons disclosing the basis upon which the Respondent's default was excused or the imposition of procedural consequences declined.

Ground 3 - Error in Exercise of Case Management Discretion (6 February 2026)

The primary judge erred in the exercise of case management discretion by maintaining the trial date of 27 April 2026 and truncating the pre-trial timetable, in circumstances where:

(a) the need for a revised timetable arose from the Respondent's prior non-compliance with Court orders;

(b) the resulting timetable imposed a materially greater burden on the Applicant than on the Respondent; and

(c) no sufficient consideration was given to whether the timetable afforded the Applicant a fair and reasonable opportunity to comply with Court-ordered processes.

Ground 4 - Misapplication of Case Management Principles

The primary judge erred in law by exercising case management powers by reference to considerations of efficiency and expedition in a manner that failed to give proper weight to the overriding requirement that proceedings be determined justly, including by permitting considerations of efficiency to prevail over the avoidance of unfair forensic prejudice caused by a party's non-compliance with Court orders.

Ground 5 - Failure to Properly Account for Consequences of Non-Compliance

The primary judge erred by making orders which had the practical effect of transferring the procedural consequences of the Respondent's non-compliance onto the Applicant, thereby exposing the Applicant to a real risk of default or forensic disadvantage not of her making.

Ground 6 - Apprehended Bias (Alternative)

In the alternative, the manner in which the Respondent's non-compliance was excused and accommodated, while the Applicant alone was subjected to compressed and onerous compliance obligations, would cause a fair-minded lay observer to reasonably apprehend that the discretion was not exercised with an impartial regard to the parties' respective positions.

Grounds on Which Leave to Appeal Is Sought:

Leave to appeal is sought on the basis that the proposed appeal raises arguable error in the exercise of discretionary case management powers, including errors of principle, failure to take into account mandatory considerations, and the denial of procedural fairness. The impugned orders arise from a single course of case management which permitted the Respondent to benefit from its non-compliance with Court orders and imposed a truncated timetable that materially impaired the Applicant's real and practical ability to prepare and present her case.

Absent appellate intervention, the Applicant will suffer substantial injustice which cannot be adequately remedied by an appeal after final judgment, as the prejudice arises from the conduct of the proceedings themselves and the loss of procedural opportunity. The appeal further raises issues of general importance concerning the proper exercise of case management discretion where considerations of expedition are said to compete with the requirement to ensure a fair hearing and to impose appropriate consequences for noncompliance with Court orders.

It is therefore in the interests of the administration of justice that leave to appeal be granted.

1. Stay application? The Applicant's 17 February 2026 submissions contend (among other things) that there was a miscarriage of the stay discretion. However, the grounds in the notice of appeal (as set out above) and the Applicant's affidavits only relate to the orders made on 3 February and 6 February 2026, not the orders made on 13 February 2026 refusing the stay application. Nonetheless, I address the arguments relating to the stay application below.

1. The Applicant correctly recognises that the orders made by the primary judge were interlocutory in nature, because her Honour did not determine the merits of the underlying dispute in that court. That means an appeal from those orders can only be brought by leave: Federal Court Act s 24(1A). (As discussed below, s 24(1AA) prevents an appeal being brought against some types of interlocutory decision, even with leave.)
2. The principles applicable to an application for leave from an interlocutory judgment can be summarised as follows:
   • Two criteria need to be addressed in an application for leave to appeal from an interlocutory judgment: (1) whether the judgment was attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) on the assumption that the judgment is wrong, whether substantial injustice would result if leave were refused.
   • The test created by the criteria is appropriate for the general run of cases but each case must be considered on its merits and the test should not be applied as if it were some hard and fast rule.
   • It is important to consider the practical operation or effect of the interlocutory order from which leave to appeal is sought. Leave should readily be given if the practical effect of the interlocutory order is to determine the proceeding or an important issue in the proceeding.

See Shepherd v Watt [2022] FCAFC 78 at [54]- [56] (the Court); Dimitrovski v Boland [2023] FCAFC 86 at [29] (the Court); Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 (the Court).

1. In considering whether there is sufficient doubt (factor (1) above), I note that particular caution is exercised by appellate courts in reviewing decisions of primary judges relating to practice and procedure: Kitchen v Director of Professional Services Review [2023] FCAFC 160 at [31] (the Court); Harper v Gold Coast Pistol Club Limited [2023] FCAFC 165 at [25]- [26] (Logan J, with Meagher and McEvoy JJ agreeing). It is not sufficient that the appellate court might have exercised the discretion differently; the Applicant must demonstrate an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); namely, that the primary judge acted upon a wrong principle, mistook the facts, failed to take into account a material consideration or was guided by extraneous or irrelevant matters, or that error can be inferred from the overall result: Shepherd v Watt at [57]-[58]; Kitchen at [30]. There is a strong presumption in favour of the correctness of the decision appealed from in a discretionary judgment, and the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong: Shepherd v Watt at [59], and the cases cited.
2. Position with self-represented litigants: I note that the Applicant is self-represented in this application, as she was before the primary judge. The courts have an overriding duty to ensure a fair trial for all parties, which means courts will take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the particular court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court).
   • However, although courts may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); see also Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).
   • Further, the extent, if any, of assistance which a trial judge should afford to an unrepresented litigant in civil proceedings is nuanced, because not all unrepresented litigants are alike: some may lack language skills or be plainly "at sea" in an unfamiliar court environment; others may be fixated on a particular issue or issues; still others may be intelligent and articulate: Lee v Huo [2026] NSWCA 15 at [72] (Bell CJ, with Mitchelmore and Stern JJA agreeing). The Applicant here is in the last category.
3. The Applicant's arguments can be considered with these principles in mind.

A. Appeal from 6 February 2026 orders - effect of Federal Court Act s 24(1AA)

1. It is convenient to begin with the orders of 6 February 2026, as the Respondent contends that any appeal from these orders is precluded by s 24(1AA) of the Federal Court Act.
2. Federal Court Act s 24(1AA): This Court has jurisdiction to hear appeals from the Federal Circuit and Family Court of Australia (Div 2), subject to exceptions that are not relevant here (Federal Court Act s 24(1)(d)). Section 24(1AA) provides that "[a]n appeal must not be brought" from a judgment referred to in (relevantly) s 24(1)(d), if the judgment is:

(b) a decision to do, or not to do, any of the following:

(i) join or remove a party;

(ii) adjourn or expedite a hearing;

(iii) vacate a hearing date. (emphasis added)

1. The general purpose of s 24(1AA) is to remove the right of appeal for "minor procedural decisions": see Praljak v Office of the Australian Information Commissioner [2025] FCAFC 126; (2025) 311 FCR 178 at [39] (the Court). That said, there is no qualification to s 24(1AA) based on the quality or nature of the underlying grounds of the appeal (such as an allegation that a refusal to grant an adjournment caused a breach of procedural fairness): Praljak at [60]. Other cases have observed that the prohibition in s 24(1AA) on bringing an appeal against a refusal to adjourn a hearing is unqualified: Tucker v State of Victoria [2022] FCA 1449 at [12] (Anderson J), and the cases cited.
2. Do 6 February orders come within s 24(1AA)(b)(ii)? The Applicant contends that the 6 February orders are not caught by s 24(1AA)(b)(ii), because (it is said) those orders were not a decision not to "adjourn ... a hearing". The Applicant contends that a case management order maintaining an existing trial date is not necessarily equivalent to a decision to refuse an adjournment. She contends that s 24(1AA)(b) is directed at "routine listing decisions", and does not immunise broader discretionary case management decisions from appellate review merely because they have temporal consequences.
3. These arguments must be rejected. The question of whether court orders concern a decision to adjourn a hearing (or not to adjourn) is determined as a matter of substance by considering the consequence of the orders. That position follows from Tucker at [14], where Anderson J stated:

[14] It does not matter that the hearing on 25 October 2022 was not an adjournment hearing. What is relevant for the purposes of s 24(1AA) of the FCA Act is that the consequence of Order 1, which "listed" the summary judgment and trial together on 5 December 2022, was that it was a decision by a Judge to defer or postpone the hearing of the summary judgment application to a future date, namely, the date also fixed for the trial and not to a date prior to the trial date of the Bankruptcy Proceeding. (emphasis added)

1. Here, the consequence of the 6 February 2026 orders was to refuse the Applicant's request for an adjournment, because the Applicant's objection to those orders being made was that (in her submission) she did not have sufficient time to prepare and the hearing date should have been adjourned. I therefore agree with the primary judge's analysis in Anderson (No 3) at [2].
2. It is true that the general purpose of s 24(1AA) is to prevent appeals from what are described as "minor procedural decisions". However, that general description does not alter or limit the text actually used, which (relevantly) is an absolute bar on appeals from adjournment decisions. And Praljak makes clear that the grounds of appeal from an adjournment decision do not qualify the absolute terms of s 24(1AA)(b).
3. Conclusion - appeal against 6 February orders is incompetent: For these reasons, the application for leave to appeal against the 6 February orders is incompetent to that extent, because that appeal is barred by s 24(1AA)(b)(ii) of the Federal Court Act. That means that those grounds which seek to challenge the decision not to adjourn the hearing must be rejected on that basis alone: see grounds 1(b) and 3-5. I note that an interlocutory judgment (such as a refusal to grant an adjournment) can be used as the basis of an appeal from the final judgment: Federal Court Act s 24(1E), as occurred in previous proceedings in this matter: see Anderson v Morgan Crest Pty Ltd t/as Ray White Benalla [2025] FCA 817 at [90] (Rofe J).
4. No other error in timetabling orders (cf grounds 1(b), 3-5): Even if the timetabling orders made on 6 February could be considered separately from their operation as a refusal of an adjournment (contrary to the above), there would be no error, and certainly no error warranting appellate intervention.
   • This is a matter of procedure and discretion, and therefore this Court would only intervene in a clear case of error: see [19] above.
   • The relevant factors when revising or extending timetabling orders are similar to those which inform whether to grant an adjournment; namely, whether each party will have a reasonable opportunity to prepare their case; the explanation for why the existing orders need to be changed; and the broader interests of the administration of justice, as reflected in the overarching purpose and objectives in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth): see, in relation to adjournments, Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] (the Court).
5. Accordingly, it was open to the primary judge to consider not only the Applicant's time to prepare for the hearing, but also the Respondent's stated desire to have the April hearing maintained, and the restrictions on when the primary judge could next hear the matter (as her Honour did: see Anderson (No 2) at [5]). The primary judge expressly turned her mind to whether the revised timetable would give the Applicant sufficient time to prepare for the hearing, and was satisfied that the Applicant would still have reasonable time: see Anderson (No 2) at [6]-[8]. That finding was open to her Honour: the Applicant complains that the revised timetable is "truncated", but she still has two weeks between the filing of the Respondent's evidence and her written submissions, and a week between receiving the Respondent's written submissions and the hearing. That is less time than previously, but it is not an unreasonable period. No doubt the primary judge has given more weight to the Respondent's preference as to the trial date and the efficient operation of the court below (both relevant matters) than the Applicant thinks should have been done, but there is no appealable error in her Honour's weighing of relevant factors.

1. The next issue is the application for leave to appeal from the 3 February orders; namely, the order refusing to strike out the Defence.
2. General observations: The Applicant is correct that an appeal from these orders is not prohibited by s 24(1AA) of the Federal Court Act (and to be clear, the primary judge did not suggest that it was). As noted, the test for leave is whether there is sufficient doubt about the primary judge's decision; and (assuming that decision is wrong) whether substantial injustice would result if leave were refused. A general matter tending against the grant of leave is that the 3 February orders concern a matter of practice and procedure: as noted, there is a strong presumption that decisions of this sort are correct, and the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong.
3. No misapplication of case management principles (grounds 1(a), 2): Here, the Applicant sought not only to have the Defence struck out for non-compliance with the primary judge's timetabling orders of 26 November 2025, but also sought further orders barring the Respondent from defending the proceeding, and entering judgment on liability in favour of the Applicant.
4. It may be accepted that the primary judge had power to make the orders sought: r 5.11 (read with r 5.09(b)(ii)) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) confers power to give judgment in favour of the applicant if the respondent does not comply with a court order in the proceeding. However, powers of this sort are exercised cautiously: see Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13] (Yates J); EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd [2025] FCA 328 at [14] (point (1)) (Burley J); Kim v Wang [2025] FCA 1244 at [17] (Owens J). The courts consider factors such as the nature of the default and any explanation provided for it; the extent of prejudice to the other party; the manner in which the defaulting party has conducted itself in the proceeding; and whether the Court can be confident that the proceeding would henceforth be conducted in an orderly and proper manner: Kazar (liquidator), in the matter of AE Charter Services Pty Ltd (in liq) v Adelaide Equity Holdings Pty Ltd [2025] FCA 59 at [18] (McDonald J); Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 at [45] (the Court), citing Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 at 395 (Wilcox and Gummow JJ).
5. Given these principles, the primary judge was not in error in refusing to strike out the Defence; to the contrary, it is very likely that her Honour would have committed appealable error if she had made the orders sought by the Applicant. It cannot be said, for example, that the Respondent's delay was wilfully disobedient and insolent (or "contumacious and contumelious"): cf Monks v Pieman at [49].

1. Two final matters can be dealt with briefly.
2. No reasonable apprehension of bias (round 6): There is no reasonable apprehension of bias. The test of apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [37]- [38] (Kiefel CJ and Gageler J), [67] (Gordon J), [221] (Gleeson J), [274] (Jagot J). The Applicant has not explained what matter might cause a reasonable bystander to consider that the primary judge might not have brought an impartial mind to deciding the matter. The complaint seems to be that apprehended bias should be inferred from the result. But the bare fact that a judge has made rulings against a party is not enough, without more, to establish apprehended bias: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11] (the Court); Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169; (2022) 294 FCR 346 at [55] (the Court); Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
3. No error in refusing stay application: Finally, the primary judge was correct to refuse the stay application. The Applicant complains that her Honour did not apply the usual principles for determining a stay application, such as whether refusing the stay would cause irremediable prejudice or render the appeal nugatory, and the balance of convenience.
4. However, those usual principles were of reduced relevance here, because of two features of this case. First, in so far as the Applicant sought to stay the 6 February orders, any appeal from those orders was barred by s 24(1AA) of the Federal Court Act (as held by the primary judge: Anderson (No 3) at [2]). One analysis is that the balance of convenience did not favour granting a stay, because any appeal from that order must fail. Either way, the important point is that a stay of the 6 February orders should not be granted. Second, in so far as the Applicant sought to appeal against the 3 February orders, there would not be any point in making this order (as held by her Honour: Anderson (No 3) at [3]). By its nature, a stay can prevent a "positive" order (that changes the pre-existing position) from coming into effect, but a stay does nothing to a "negative" order (that refuses an application and maintains the pre-existing position). References in the case law to a stay maintaining the status quo need to be read with that distinction in mind. Accordingly, the fact that the primary judge did not refer to these usual principles does not establish any error: the decision not to grant a stay was, with respect, plainly correct.

1. For these reasons, the application for leave to appeal from the orders made by the primary judge must be refused. The usual position is that the unsuccessful party (the Applicant) pays the costs of the successful party (the Respondent). There is no reason why that usual position should not apply here.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.