18 April 2019
Federal Circuit Court Litigation - Delay in filing a response
We are acting for an applicant in the Federal Circuit Court. The proceedings have been on foot for more than 6 months without a response having been filed, despite two previous consent orders requiring this to be done.
The day before the response was most recently due to be filed we received a notice of ceasing to act from the respondent’s solicitor.
The next directions hearing is scheduled in 2 weeks time.
We have complied with all orders.
What actions are available to our client before the next directions hearing?
Thank you for the question.
An application in a case, with supporting affidavit, could be filed pursuant to rule 4.08, returnable on the next court date, seeking an order for default or summary judgment under rule 13.03B and/or rule 13.07 Federal Circuit Rules 2001.
Whether or not this is done, it is likely that if the respondent seeks an adjournment to obtain new legal representation and to file a response within a further reasonable time, it will be granted. Any prejudice to the client could be cured by a costs order, with any application for judgment also adjourned pending the respondent’s compliance.
If no application is filed, the court may grant leave to enter judgment of its own volition under the rules, which may occur if the respondent fails to appear, or cannot show sufficient reason for their default.
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