Background
In the underlying proceeding, the Federal Court repeatedly raised unresolved questions about its jurisdiction and the nature and scope of the duty of care alleged by JVU25. The primary judge expected those issues to be addressed at the pleading stage and encouraged the applicant’s solicitor, Mr Christopher Chidiac, to retain experienced counsel after the solicitor had not adequately progressed them over several months.
A case management hearing was scheduled for 20 November 2025 specifically to accommodate counsel and address those anterior issues. Applicant’s counsel did not appear because Mr Chidiac, through an admitted administrative oversight, had not ensured that counsel was briefed to attend. The primary judge later ordered Mr Chidiac personally to pay the respondent’s costs of that hearing under s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth), explaining that the order compensated the respondent for wasted costs and protected JVU25 from bearing them.
JVU25 sought leave to appeal the interlocutory costs order, but filed outside the applicable 14-day period. The Court determined both the extension-of-time application and the application for leave to appeal on the papers.
The Court’s Holding
Justice O’Sullivan granted an extension of time because the filing delay was short and had been explained. The time for filing the application for leave to appeal was extended to 16 February 2026, the date on which it had been accepted for filing.
The Court nevertheless refused leave to appeal. It rejected arguments that the primary judge had improperly required counsel to appear, denied the solicitor a right of audience, or breached procedural fairness. The primary judge had not imposed a general requirement to retain counsel; rather, the solicitor had repeatedly failed to address important issues and then failed, through his own oversight, to ensure that retained counsel attended the hearing arranged to deal with them.
No error under the principles governing appellate review of discretionary decisions was demonstrated. The personal costs order was therefore not attended by sufficient doubt to warrant reconsideration, and because the two requirements for leave were cumulative, the application failed without the Court needing to find substantial injustice.
Key Takeaways
- A short, adequately explained delay may justify extending the time to seek leave to appeal, but an extension does not establish that leave should be granted.
- A lawyer may be ordered personally to pay costs when unreasonable conduct causes an opposing party to incur costs preparing for and attending a wasted hearing.
- Challenges to discretionary costs orders must identify an appealable error; disagreement with the primary judge’s case-management decision is insufficient.
Why It Matters
The decision underscores counsel and solicitors’ statutory duties to assist in conducting Federal Court proceedings consistently with the overarching purpose, including the efficient use of judicial resources and timely resolution of disputes. Repeated failure to address issues identified by the Court, coupled with an avoidable failure to brief counsel for a purpose-specific hearing, can justify a personal costs order.
It also illustrates the high threshold for obtaining leave to appeal an interlocutory, discretionary costs order. An applicant must show sufficient doubt arising from an error in the exercise of discretion, as well as substantial injustice if leave is refused.