Background
The applicant sought leave to amend his statement of claim but repeatedly failed to comply with orders requiring him to serve a draft amended pleading, file supporting submissions, and communicate about his defaults. His November 2025 amendment application was eventually abandoned, with the respondent first told of that decision three days before the July 2026 hearing.
The Commonwealth had filed submissions and affidavit evidence responding to the amendment application and, after further defaults, applied in June 2026 to dismiss the proceeding for non-compliance. At the hearing, the parties consented to dismissal of the applicant’s amendment application and to a further opportunity for the applicant to file a fresh amendment application. The remaining issue was costs.
The Court’s Holding
Lenehan J ordered the applicant to pay the Commonwealth’s costs of both interlocutory applications on an indemnity basis. That included costs thrown away on the applicant’s abandoned amendment application and the Commonwealth’s costs to date of its dismissal application.
The Court held that the applicant’s repeated and unexplained failures to comply with orders, remedy defaults, seek extensions, and communicate with the Court and the Commonwealth amounted to delinquency in the conduct of the proceeding. The explanations concerning difficulties retaining counsel, alleged unpaid costs in related litigation, and the High Court’s decision in Abdel-Hady did not adequately explain the defaults.
Key Takeaways
- Indemnity costs may be awarded where procedural misconduct causes the opposing party unnecessary expense.
- Difficulty retaining counsel does not excuse failures to seek extensions or communicate promptly with the Court and other parties.
- Abandoning an interlocutory application after the other party has prepared evidence and submissions can support an indemnity costs order.
Why It Matters
The decision reinforces that costs are ordinarily compensatory, but indemnity costs may be required to more fully compensate a party harmed by unreasonable procedural conduct. It also underscores that parties facing compliance difficulties must promptly seek relief and keep both the Court and opponents informed.