Cain & Fleming [2026] FedCFamC1A 63 was determined by Schonell J on 21 April 2026.  The applicant, who was the respondent in respect of the substantive proceedings, had sought to appeal interlocutory orders for which leave was required.  The orders, made on 11 April 2026, that the applicant sought to challenge were in respect of the filing of trial affidavits and an Outline of Case where the matter had been allocated a two-day hearing in November 2026.  The applicant therefore had nine months to prepare his case.  

The matter was listed for a ‘show cause’ hearing on 13 April 2026 however, the applicant did not file written submissions.  Instead, at that hearing he sought to make oral submissions centred around his perception that the Court was biased against him.  The respondent was legally represented and had filed written submissions. 

His Honour set out the basis for determining applications for leave to appeal1 and found that none of the applicant’s 23 matters to support his contention of substantial injustice if leave to appeal were not granted actually addressed the requirement for leave and, further, that those grounds were better characterised as a ‘litany of complaint and grievance’2. 

The Notice of Appeal, having been found to be entirely misconceived, was dismissed. 

A Notice of Appeal where the applicant fails to file written submissions and instead makes oral submissions about perceived bias, is unlikely to survive a show cause hearing. Grounds of appeal must actually address the legal requirements for leave, not merely catalogue grievances.