15 The respondent's interlocutory application seeks the following orders:
1. An order that Orders 1 and 2 made on 16 April 2021 be varied nunc pro tunc to delete "23 April 2021" in each place occurring and to insert "7 May 2021" in place of each deletion.
2. In the alternative to order 1:
- a. An order (in accordance with Note 2 to Rule 5.23 of the Federal Court Rules 2011 (Cth) setting aside the default judgment entered against the Respondent by reason of the operation of Order 2 of the orders made on 16 April 2021; and
- b. An order that the Respondent have leave to rely upon the affidavit of Christopher Anderson affirmed on 7 May 2021.
16 The interlocutory application was first listed for hearing before me on 19 May 2021. That listing was subsequently adjourned to Monday, 21 June 2021 at the request of the respondent. There is nothing noteworthy about the adjournment itself, however, it was not until Friday, 18 June 2021 (approximately one-month after the original listing date) that a further affidavit to be relied on by the respondent in support of the interlocutory application was filed. This affidavit was affirmed by the respondent's solicitor, Mr Macinnis. His affidavit purported to reply to the affidavit evidence filed by the applicants, but most of its content is properly described as evidence in chief that sought to explain the respondent's default.
APPLICABLE PRINCIPLES
17 Rule 5.21 provides:
5.21 Self-executing orders
A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:
- (a) the proceeding be dismissed; or
- (b) the applicant's statement of claim, or alternative accompanying document referred to in rule 8.05, be struck out; or
- (c) a pleading of the respondent be struck out; or
- (d) the party have judgment against the other party.
18 For the purposes of the Federal Court of Australia Act 1976 (Cth) ("the Act") and the Rules a judgment relevantly means a judgment or order, whether final or interlocutory.
19 The respondent seeks, in para 2 of his interlocutory application, an order "setting aside the default judgment" entered by reason of the operation of the self-executing order. I do not think
