Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla

This case began as an Australian Consumer Law dispute connected with property management and a residential tenancy agreement. Lena Anderson alleged that Morgan Crest Pty Ltd, trading as Ray White Benalla, had engaged in unconscionable conduct under s 21 of Schedule 2 to the Competition and Consumer Act 2010 (Cth). Those allegations were before the Federal Circuit and Family Court of Australia (Division 2).

But the Federal Court decision at [2026] FCA 258 was not a ruling on whether that alleged conduct happened. It was an interlocutory appeal decision about procedure. The real fight in the Federal Court was over what should happen after the respondent filed a further amended defence late, and whether later timetable orders that kept the existing hearing date could be challenged immediately.

The lower court had ordered the respondent on 26 November 2025 to file and serve its further amended defence by 5 December 2025. It did not do so. The defence was filed on 16 December 2025. On that same day, Ms Anderson applied to strike out the defence for non-compliance with the court's orders.

The respondent later filed affidavit evidence from its solicitor explaining the delay. The explanation included that the solicitor involved had been delayed partly because her child had been in hospital with suspected appendicitis. That explanation became important because the lower court had to decide whether the late filing justified a severe procedural sanction, or whether the case should instead continue under revised case management orders.

The strike-out application was heard on 3 February 2026. The primary judge refused to strike out the defence. The judge said the court would not normally strike out a defence where an explanation had now been given for the delay and where the respondent appeared keen to proceed with the matter properly. The judge also made clear that the court's aim was to move the matter forward in a way that was fair to everyone, rather than to be harsh for its own sake.

That hearing also dealt with practical preparation issues. The primary judge asked whether Ms Anderson needed more time because the defence had been filed late. At that point, Ms Anderson said she wanted the hearing to proceed on 27 April 2026 as already scheduled. She also said she needed to subpoena documents. The judge granted her leave to issue up to five subpoenas without notice to the respondent. She also said at that stage that she did not wish to file a reply.

After the hearing, Ms Anderson changed position. She emailed chambers saying that she did wish to file a reply and wanted the timetable amended, proposing that the trial go ahead in July 2026. A further hearing took place on 6 February 2026. The primary judge revised the timetable but kept the 27 April 2026 hearing date.

In explaining that decision, the primary judge said there were no available dates in July and that the next available date would be October 2026. The respondent did not want that. It said having the litigation hanging over its head was difficult and it wished to preserve the existing hearing date. The judge then considered whether the timetable could be reasonably reworked while keeping the April hearing. The judge concluded that it could. Although Ms Anderson strongly opposed the revised timetable and said she needed more time, the judge considered the timeframes reasonable in all the circumstances.

The primary judge also addressed the fact that Ms Anderson was unrepresented, while noting that she was obtaining legal advice from an external source. The judge accepted that this may make preparation slower, but still concluded there was adequate time for the hearing to proceed on 27 April 2026. The judge also noted that, if subpoenas were issued promptly, there should still be time to deal with any objections before the hearing.

Ms Anderson then sought leave to appeal the 3 February and 6 February decisions. She also sought a stay of those orders in the lower court, but that stay application was refused on 13 February 2026.

Hill J had to deal with two different procedural questions. The first concerned the 6 February 2026 timetable orders. Were those orders appealable at all? The respondent argued they were not, because in substance they amounted to a refusal to adjourn the hearing. Section 24(1AA)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) bars appeals from decisions to adjourn or not adjourn a hearing.

The second question concerned the 3 February 2026 refusal to strike out the defence. That order was interlocutory, so leave to appeal was required. The Federal Court therefore had to consider the usual leave principles for interlocutory appeals, including whether the decision was attended with sufficient doubt to warrant reconsideration and whether substantial injustice would result if leave were refused.

The applicant's proposed grounds were framed broadly. They included alleged denial of procedural fairness, error in refusing to strike out the defence, error in maintaining the hearing date and revised timetable, misapplication of case management principles, failure to impose consequences for non-compliance, and apprehended bias in the alternative.

The Court also had to approach those arguments in light of two important procedural themes. First, appellate courts are cautious about interfering with discretionary decisions on practice and procedure. Second, the applicant was self-represented. The judgment recognised the court's duty to ensure a fair trial for all parties and to take appropriate steps to assist an unrepresented litigant with practice and procedure where reasonably practicable. But it also made clear that this leniency does not extend to giving a self-represented party an advantage over the represented party.

Hill J dismissed the application for leave to appeal, with costs. The Court first dealt with the 6 February 2026 orders. It held that any appeal from those orders was incompetent because, in substance, they were a refusal to adjourn the hearing. The Court said the question is determined by substance and practical consequence, not by the label attached to the orders. Here, the applicant's objection to the revised timetable was that she did not have sufficient time to prepare and that the hearing date should be moved. The consequence of the 6 February orders was that this request was refused.

Because s 24(1AA)(b)(ii) absolutely bars appeals from decisions to adjourn or not adjourn a hearing, the challenge to those orders could not proceed. The Court rejected the argument that the provision only applies to routine listing decisions or that the seriousness of the applicant's fairness complaints could avoid the statutory bar.

The Court then considered the 3 February 2026 refusal to strike out the defence. It held there was no relevant error warranting leave to appeal. Hill J emphasised that this was a matter of practice and procedure, and that appellate courts exercise particular caution before interfering with discretionary case management decisions.

The judgment accepted that the primary judge had power to make severe orders of the kind sought by the applicant, including orders that could effectively prevent the respondent from defending the proceeding. But the Court stressed that powers of that kind are exercised cautiously. Relevant considerations include the nature of the default, any explanation for it, prejudice to the other party, how the defaulting party has conducted itself in the proceeding, and whether the court can be confident the matter can still be conducted in an orderly and proper way.

Applying those principles, Hill J held that the primary judge was not in error in refusing to strike out the defence. The respondent's delay had been explained. The Court said it could not be characterised as wilfully disobedient and insolent, or contumacious and contumelious. On the material before the Court, the lower court's decision to let the matter proceed was open.

The Court also said that even if the 6 February timetable orders were considered separately from their operation as a refusal of an adjournment, there would still be no appealable error. The primary judge had been entitled to weigh the applicant's preparation time, the respondent's wish to keep the April hearing date, and the court's own listing constraints. The revised timetable gave the applicant less time than before, but the Court did not regard it as unreasonable.

If your business is defending a claim, this case is a reminder that a missed deadline is serious but not automatically fatal. Courts generally prefer to decide disputes on their merits where that can still be done fairly. If a pleading is filed late, the court may still allow it to stand if there is a credible explanation, the delay is not extreme or deliberate, and the proceeding can still be managed properly. That said, this is not a licence to ignore orders. The outcome is discretionary and depends heavily on the facts.

If your business is on the other side of a late filing, the case is a warning against assuming that procedural default will produce an easy win. Strike-out orders and orders effectively giving judgment because of non-compliance are treated as serious sanctions. A court will usually look closely at whether the default was deliberate, whether there is a proper explanation, what prejudice has actually been caused, and whether a fair hearing is still possible with adjusted case management.

The appealability point is also commercially important. Businesses sometimes assume that if a judge refuses to move a hearing date or imposes a difficult timetable, that decision can be challenged straight away. This judgment shows that some timetable decisions are effectively insulated from immediate appeal if, in substance, they amount to a refusal to adjourn a hearing. That can affect strategy, costs, settlement timing and internal expectations about what can realistically be overturned before trial.

The case also shows how practical considerations shape procedural outcomes. The lower court considered not only the applicant's concerns about preparation time, but also the respondent's interest in not having litigation hanging over it for longer than necessary and the court's own listing availability. Businesses should expect courts to balance all of those factors, not just the inconvenience to one side.

One of the clearest practical themes in this case is the importance of evidence about conduct, not just assertions about unfairness. The respondent did not simply say the defence was late and ask for indulgence. It filed affidavit material from its solicitor explaining the delay. That mattered because courts deciding whether to excuse non-compliance usually want evidence showing what happened and why.

For businesses, that means procedural discipline should include record-keeping. If a filing is delayed because of illness, staff absence, document problems, instructions arriving late or some other disruption, the business and its lawyers should be able to explain that clearly and promptly. Unsupported excuses are much less persuasive than evidence.

The case also shows that a party seeking serious sanctions needs to do more than point to breach alone. The applicant argued that the respondent had not complied with the earlier orders and that this should have consequences. But the Court's reasoning shows that non-compliance is only part of the picture. The court also asks whether the default was deliberate, whether it caused real prejudice, whether the defaulting party is now willing and able to proceed properly, and whether the case can still be managed fairly.

That is especially important for businesses deciding how aggressively to respond to the other side's procedural failure. Sometimes a strike-out application may be justified. In other cases, a more realistic response may be to seek costs, tighter future orders, evidence deadlines, or timetable changes that address the actual prejudice caused.

The Federal Court judgment was delivered on 13 March 2026 by Hill J. The application for leave to appeal was dismissed with costs. The judgment records that the application was determined on the papers, meaning there was no oral hearing of the leave application in the Federal Court. The applicant was self-represented, while the respondent was represented by counsel and solicitors.

The decision should be read as a procedural authority about interlocutory appeals, late pleadings, adjournment characterisation and case management discretion. It should not be read as resolving the underlying unconscionable conduct allegations. Those allegations sat in the background and explain the commercial setting of the dispute, but they were not determined by this judgment.

The judgment also notes that an interlocutory decision such as a refusal to adjourn can still potentially be raised on an appeal from final judgment. That is different from saying there is an immediate right to appeal the interlocutory decision itself. For businesses, that distinction matters. It means some procedural complaints may need to be preserved and managed through the ongoing proceeding rather than challenged straight away.

As a result, the practical significance of this case lies less in the underlying tenancy dispute and more in the court's treatment of procedural defaults and appeal rights during active litigation.