Background
Ali Bilal, appearing without a lawyer, sought leave to appeal an interlocutory discovery judgment in his proceeding against Ampol Australia Petroleum Pty Ltd. His amended application contained 10 grounds supporting leave and 12 proposed appeal grounds. Although an earlier order addressed the filing of written submissions, Justice Charlesworth accepted that its wording could reasonably have been understood as leaving Mr Bilal free not to file them and therefore made no finding that he had defaulted.
At a case-management hearing requested by Ampol, Mr Bilal said that he did not wish to file written submissions and was too unwell to do so. After the Court was not satisfied on the available material that illness prevented him from preparing submissions, he orally sought Justice Charlesworth’s disqualification for apprehended bias. The judge rejected that request because Mr Bilal had not identified circumstances, or a logical connection, capable of supporting a reasonable apprehension of partiality under the test in Ebner v Official Trustee in Bankruptcy. Mr Bilal then became agitated, terminated the video link and did not answer the Court’s attempt to contact him.
The Court’s Holding
The Court dismissed the application for leave to appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), which permits a single judge to dismiss an appeal when the appellant fails to attend a hearing relating to it. By ending his video attendance and not rejoining despite the Court’s attempted contact, Mr Bilal failed to attend part of the hearing. The Court also dismissed the application for failure to prosecute.
Justice Charlesworth considered Mr Bilal’s self-represented status, apparent agitation, asserted illness and the stress of litigation, but found that those matters did not adequately explain his conduct. Dismissal caused limited prejudice because the challenged orders were interlocutory: Mr Bilal could raise alleged errors in an appeal from any final judgment, and the dismissal order itself was interlocutory and could later be varied or set aside if he established an adequate and excusable explanation. Ampol was given liberty to apply separately for costs.
Key Takeaways
- A party who deliberately terminates participation in a hearing and does not return may be treated as having failed to attend and prosecute the proceeding.
- Firm case management, adverse procedural rulings and judicial interruptions do not, without more, establish apprehended bias.
- When deciding whether to dismiss for non-attendance, the Court may weigh the party’s circumstances against case-management needs and the practical prejudice caused by dismissal.
Why It Matters
The decision underscores that self-represented litigants must continue participating in hearings and engage with directions intended to make proceedings workable. An asserted illness or belief that the judge is biased does not itself justify leaving a hearing, particularly when the Court offers an opportunity to provide supporting material.
It also illustrates why dismissal may be proportionate where the challenged ruling is merely interlocutory and other avenues remain available to contest the alleged error or seek relief from the dismissal.