• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

The first appellant stated in the notice of appeal that the appellants wanted to present the case “in writing ONLY”, that documents would be filed by email, and that they would not appear in person because the matter would be determined on written documents [11]. That stated preference did not resolve a separate procedural requirement: service of the appeal documents on the respondent.

The matter had a series of listings and non-appearances. Neither party appeared before a senior deputy registrar on 11 June 2025 [2]. The first appellant appeared on 2 July [3] and again on 16 July, when a senior deputy registrar directed the appellant to file an affidavit showing service of the appeal documents at the addresses for service used below [4]. The deadline set at that stage was 30 July 2025.

Neither party appeared at the listings on 6 and 20 August [5]-[6]. At the 8 September listing, neither party appeared. Mossop J noted both the appellant's non-appearance and the failure to comply with the 16 July order, then adjourned the matter to 17 October [7]. The court file indicated that notice of the September orders and the October listing had been sent to the appellant by email and post [9]. On 17 October, the matter was listed for 9:15 am and called outside court at 9:27 am, when there was no appearance [10].

Mossop J made a conditional order rather than deciding the merits of the appeal. The appellant was required to serve a sealed copy of the notice of appeal on the respondent at the address for service used in the proceedings below, and to file an affidavit proving service, by 4 pm on 31 October 2025. Unless both requirements were met, the appeal was to be dismissed for want of prosecution immediately after that deadline and the Chief Justice's 5 May order confirmed [19]. If the affidavit was filed, the Registrar was to list the matter for directions and notify the parties [19].

The judgment is therefore a procedural decision about service and prosecution of an appeal. It contains no determination of whether the Chief Justice's underlying order was right or wrong.

Why the court decided this way

The Court's reasoning proceeded from two rules in the Court Procedures Rules 2006 (ACT), as identified in the judgment: r 5409 and r 5603 [12], [15]-[17].

First, r 5409 required service of the notice of appeal and a stamped copy of the case summary on each respondent. Mossop J stated that service had to occur no later than seven days after filing the notice of appeal [12]. Since the notice was filed on 14 May 2025, the Court said service was required by 21 May 2025 [13]. The appellant's preference to have the appeal determined on written documents did not avoid that obligation [11]-[13]. The judgment thus separates the method by which an appeal may be determined from the procedural steps needed to bring the appeal to the respondent's attention.

Second, r 5603 provided a basis for addressing an appeal that was not being progressed. Under r 5603(2), the relevant thresholds included failing to do something required by the rules for three months after the requirement arose, or failing to prosecute the appeal with appropriate effort for three months after the last step in the proceeding [15]. Mossop J relied on the latter ground. The last occasion on which the appellant appeared for the purposes of the proceedings was 16 July 2025 [14]. By 17 October, the affidavit proving service had not been filed and there had been repeated non-appearances. The Court was satisfied that the appellant had not prosecuted the appeal with appropriate effort during the three-month period following the July appearance [18].

The Court also addressed who could invoke r 5603 in the circumstances. No respondent had appeared or applied for dismissal. Mossop J reasoned that, given the apparent absence of service, the power available was the Court's power to act “on its own initiative” under r 5603(3)(b) [17]. The reasoning does not say that a respondent's application is always necessary or that the Court is generally confined to this particular power. It explains the choice made on the circumstances of this file.

The selected response was a conditional, or “guillotine”, order. Mossop J described r 5603(3) as including the power to dismiss proceedings, and the power to require a step within a specified time with dismissal to follow if it was not completed [16]. The order gave a final short period for service and proof, and stated the consequence of non-compliance [19]. This structure left an opportunity for the appeal to move to directions if the affidavit was filed, while specifying dismissal if the requirement remained unmet.

Before and after state of the law

The judgment does not purport to change the law or introduce a new doctrine. It applies the Court Procedures Rules 2006 (ACT) to the procedural history before it. Its account of the pre-existing rules is specific: r 5409 required service within seven days of filing the notice of appeal, while r 5603 set out the three-month inactivity or insufficient-effort thresholds and the Court's available responses [12]-[16].

Before the order, the appeal had been filed but the Court had not been given the required affidavit proving service, despite the direction made on 16 July [4], [7]. The judgment also records that there was no appearance for the respondent and that no respondent had applied to dismiss the proceeding [17]. The Court nevertheless considered itself able to act on its own initiative under r 5603(3)(b) [17].

After the order, the procedural position depended on whether the specified steps were completed by 4 pm on 31 October 2025. If the appellant served the sealed notice of appeal and filed the affidavit proving service, the Registrar was to list the matter for directions. If those requirements were not met, the appeal was to be dismissed for want of prosecution and the Chief Justice's 5 May order confirmed [19]. The judgment does not provide an outcome after 31 October 2025, nor does it explain any later steps in the appeal.

The practical significance of the reasoning, limited to what the judgment decides, is that the Court treated compliance with service rules as distinct from a litigant's choice to rely on written material. It also treated the three-month failure to prosecute threshold as capable of being addressed by a court-initiated conditional order where no respondent had appeared. This is an application of the cited rules to the facts, not a stated amendment to them.

Key passages with plain-English translation

At [12], Mossop J wrote: “While it is possible for appeals to be determined on the papers, that does not avoid the obligation in r 5409 to serve a notice of appeal and a stamped copy of the case summary on each respondent to the appeal.” In plain English, asking for a decision based on written material does not itself satisfy, or remove, the separate requirement to serve specified documents on the respondent. The judge also identified the deadline as seven days after filing.

At [13], the judgment applies that deadline to the facts: service was required by 21 May 2025. The notice of appeal had been filed on 14 May [1]. The July direction then required an affidavit showing service by 30 July [4]. The October order used a later deadline, 4 pm on 31 October, for service of the sealed notice and filing proof by affidavit [19].

At [15], the Court set out two routes under r 5603(2): a failure to do something required by the rules within the relevant three-month period, or a failure to prosecute the appeal with appropriate effort for three months after the last step. The Court relied on the second route in this case [18]. The focus was not simply the number of attendances; the judgment also records the outstanding service issue and the unfulfilled direction to prove service [4], [7], [18].

At [17], Mossop J explained that the apparent lack of service meant no respondent had appeared or applied for dismissal. He therefore identified r 5603(3)(b), the Court's power to act “on its own initiative”, as the available power in the circumstances. This explains the procedural source for making an order without an application from the respondent.

At [18]-[19], the Court linked its finding of insufficient prosecution to the conditional order. The order did not immediately dispose of the appeal on the merits. Instead, it set a deadline and specified what would happen if the service and affidavit requirements were not met. If they were met, the next step was a directions listing; otherwise, dismissal for want of prosecution followed [19].

What fact patterns trigger this precedent

The decision is most directly relevant to the combination of circumstances recorded in this judgment: an appeal had been filed, the respondent had not been shown to have been served, an order requiring proof of service had not been complied with, and the appellant had not attended multiple subsequent listings [1]-[10]. The Court also had the appellant's statement that the appeal would be conducted in writing [11]. It held that the papers-only preference did not displace service [12].

For practitioners assessing the judgment's potential relevance, the key procedural questions it addresses are whether a rule-based appeal service obligation remains applicable when a party seeks a papers determination; whether the three-month period under r 5603(2)(b) has elapsed after the last step; whether the file shows appropriate effort to prosecute the appeal; and whether a respondent has appeared or applied for dismissal. The judgment's own-initiative reasoning arose in the specific setting where no respondent had appeared or applied and the Court considered service apparently absent [17].

The decision should not be read as deciding every situation involving non-attendance, delayed service, or self-represented parties. The reasons do not analyse explanations for the non-appearances, discuss extensions of time, or determine whether any particular circumstance could justify a different response. Nor does the judgment decide whether a particular appeal must be heard orally. It says only that appeals can be determined on the papers, while maintaining the service requirement [12].

The order itself is also specific. It required service of a sealed copy of the notice of appeal at the respondent's address for service in the proceedings below, plus an affidavit proving service, by a defined time and date [19]. The judgment does not set out a general form of order for every appeal, or discuss the adequacy of alternative methods of service.

How later courts have treated it

The supplied judgment contains no discussion of later judicial treatment of this decision, and the material provided includes no later cases. Accordingly, it is not possible from this source to say whether subsequent courts have followed, distinguished, applied, or otherwise treated ZA v Director General, Community Services Directorate.

The judgment itself cites no other decisions. Its stated legal sources are rr 5409 and 5603 of the Court Procedures Rules 2006 (ACT) [12], [15]-[17]. Its reasoning is therefore presented as an application of those rules rather than an express adoption of a line of precedent. Any account of subsequent treatment would require sources beyond this judgment.

Still-open questions

Several matters are not determined in the reasons. First, the judgment does not explain whether the service requirement was in fact met by the 31 October deadline. The conditional order leaves that matter dependent on later compliance [19].

Second, the judgment does not describe the merits of the appeal or the content of the Chief Justice's 5 May 2025 order. It therefore gives no basis for assessing the substantive grounds or the implications of confirming that earlier order if the appeal was dismissed [1], [19].

Third, although the Court records that notice of the September orders and October listing was sent by email and post [9], it does not analyse any issue concerning receipt, the adequacy of that notification, or an explanation for the appellant's absence. The reasons record no appearance at 9:27 am on 17 October [10] and no affidavit proving service, but do not explore why those events occurred.

Fourth, the judgment does not address the possible operation of any exception, extension, or other procedural provision beyond the two rules it identifies. It does not consider whether the particular deadline or form of proof could be varied, or what evidence might be sufficient to prove service in another case. Those questions cannot be resolved from this judgment alone.

Finally, the decision does not report subsequent appellate or judicial consideration. Its significance beyond the particular procedural circumstances therefore needs to be assessed against later sources that are not included here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.