Federal Court of Australia

Pandey v Dr Tiffany Tam Pty Ltd [2026] FCA 365

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), summary judgment in this proceeding be given for the respondents against the applicant.

2.    The applicant pay the respondents’ costs of the proceeding:

(a)    on a party/party basis; and

(b)    in a lump sum to be determined.

3.    By 4.00pm on 20 April 2026, the applicant file and serve any affidavit in response to the costs summary set out at paragraphs [11]–[13] of the affidavit of Geoffrey John Seymour Shaw sworn on 29 January 2026 (Costs Response).

4.    Any Costs Response must comply with paragraph [4.14] of the Costs Practice Note (GPN-COSTS).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

1    In this proceeding, the applicant seeks judicial review of a decision made by a Judicial Registrar to refuse documents for filing under r 2.26 of the Federal Court Rules 2011 (Cth). While the orders sought in the originating application were primarily directed to the making of that decision, it became clear during oral submissions that the applicant, who appeared in person, was seeking to advance three challenges:

(1)    A challenge, on procedural fairness grounds, to the holding of a confidential conference under r 40.21(2)(a) of the Rules without first considering the applicant’s request to vacate the listed conference date and supporting medical evidence;

(2)    A challenge, on procedural fairness grounds, to the Judicial Registrar holding the conference in his absence; and

(3)    A challenge to the Judicial Registrar’s refusal to accept documents sought to be filed by the applicant subsequent to the conference being held in his absence.

2    The respondents have applied by way of interlocutory application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or, alternatively, r 26.01(1) of the Rules.

3    Two preliminary points may be noted at the outset about the applicant’s claims. First, as will be explained, there is uncontested evidence that the Judicial Registrar considered the adjournment request and supporting medical certificate before deciding to proceed with the conference on the listed date. The applicant accepted this fact when it was put to him during oral submissions. Accordingly, the claim for a breach of procedural fairness on that basis cannot succeed.

4    Secondly, success on the third challenge is tethered to success on the second challenge. If the applicant is unsuccessful with the second challenge, there was no basis for him to seek to file the documents that were rejected by the Judicial Registrar.

5    For the following reasons, I am persuaded that the applicant has no reasonable prospect of success in this proceeding and thereby summary judgment should be given in favour of the respondents, along with a lump sum costs order against the applicant.

Background

6    In proceeding number ACD 53 of 2020 (2020 proceeding), the Court ordered that the applicant and an associated corporation, Nitin Pandey Pty Ltd (being the plaintiffs in the 2020 proceeding) pay the respondents’ costs as agreed or taxed. The respondents were the fourth and fifth defendants in the 2020 proceeding. For convenience, I will refer to the relevant parties to the 2020 proceeding collectively as the 2020 proceeding parties. The 2020 proceeding costs orders and accompanying reasons were published as Nitin Pandey Pty Ltd v Curtin Chambers Pty Ltd, in the matter of Curtin Chambers Pty Ltd (No 2) [2023] FCA 1286.

7    On 7 June 2024, the respondents filed a bill of costs in respect of the costs orders. The applicant was served with the sealed bill of costs and the required accompanying documents. By letter dated 16 August 2024, a Registrar of the Court gave notice under r 40.20(3) of the Rules to the 2020 proceeding parties of the estimate of the approximate total for which the certificate of taxation would be likely to issue. On 4 September 2024, the applicant lodged a notice of objection to the costs estimate. It was accepted for filing on 9 September 2024.

8    On 16 April 2025, in response to the applicant’s notice of objection, the 2020 proceeding parties were notified that Judicial Registrar Birchall had listed the matter for a conference at 10.00am on 30 May 2025. In an affidavit affirmed on 15 January 2026, the applicant deposed that he attended his treating medical practitioner on 26 May 2025 due to a medical condition affecting his capacity to function. He obtained a medical certificate dated the same day stating that he had a medical condition and should be “exempted from attending any legal proceedings” for a six-week period.

9    On 28 May 2025, the applicant’s then solicitor, Mr Connor McFadyen, wrote to the respondents’ solicitor informing them that the applicant was suffering from, and getting treatment for, a medical condition. Mr McFadyen sought the respondents’ consent to request an adjournment of the conference. The respondents’ solicitor replied that same day opposing the adjournment request and indicating that the conference should proceed without the applicant’s personal attendance.

10    The applicant then approached the Court seeking to vacate and relist the conference date. This was done, first, by lodging an interlocutory application on the morning of 29 May 2025, with a supporting affidavit affirmed by Mr McFadyen on 27 May 2025 annexing the applicant’s medical certificate. Secondly, when the filing of that application was refused, Mr McFadyen sent an email to the Registry on 29 May 2025 forwarding Mr McFadyen’s affidavit annexing the applicant’s medical certificate. The respondents’ solicitor emailed their opposition to the Registry on the same day.

11    Later that day, the 2020 proceeding parties were notified that Judicial Registrar Birchall had decided not to vacate the conference. The notification stated that Judicial Registrar Birchall had taken into account Mr McFadyen’s affidavit and the parties’ emails.

12    The conference took place on Microsoft Teams on 30 May 2025 with Mr McFadyen in attendance, but in the applicant’s absence. No resolution was reached. In an affidavit affirmed on 15 January 2026, the applicant stated that he “was not represented at the conference due to [his] medical incapacity”. Given that there is evidence before the Court that Mr McFadyen participated in the Microsoft Teams meeting, I infer that the applicant was referring to his own absence from the conference.

13    On 31 May 2025, the applicant personally emailed the Registry conveying his objection to the holding of the conference on 30 May 2025 and forwarding Mr McFadyen’s affidavit and the medical certificate (objection documents). A previous attempt to email the Registry on the evening of 29 May 2025 had been sent to an incorrect email address. Judicial Registrar Birchall refused to accept the objection documents for filing and that decision was notified to the applicant on 4 June 2025.

14    On 17 June 2025, the applicant’s then solicitor filed notices of ceasing to act for the applicant and Nitin Pandey Pty Ltd.

15    On 4 August 2025, the 2020 proceeding parties were notified that the taxation of the bill of costs had been allocated to Judicial Registrar Lackenby. On 7 August 2025, the 2020 proceeding parties were notified that progress of the taxation would be held over in view of the judicial review application the subject of this proceeding.

PROCEDURAL HISTORY OF this proceeding

16    On 27 June 2025, the applicant filed an originating application seeking judicial review of Judicial Registrar Birchall’s decision to refuse to accept the objection documents for filing under r 2.26 of the Rules.

17    The applicant seeks the following orders:

1. An order that the decision of Registrar Birchall, communicated by the Registry on 4 June 2025, refusing to accept for filing the Applicant's objection and supporting documents dated 31 May 2025, be reviewed and set aside.

2. An order that the Applicant's objection to the costs conference held on 30 May 2025 be accepted into the Court record and considered on its merits.

3. An order that the supporting affidavit of Mr. Connor McFadyen, filed on 28 May 2025, annexing a medical certificate dated 26 May 2025, be received and considered as part of the record.

4. An order permitting the Applicant to lodge and pursue any Notice of Objection or Notice of Response relating to the taxation of costs arising from the 30 May 2025 costs conference, should the Court find the initial refusal procedurally invalid.

5. This application is brought further to the Applicant's previously submitted objection and affidavit, which were dismissed without procedural fairness due to solicitor abandonment and medical incapacity.

6. Any other order the Court deems appropriate in the interests of justice.

7. This application is made under section 39B of the Judiciary Act 1903.

8. It is intended to serve this application on all Respondents.

18    As can be seen, the application seeks to invoke the Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth). The applicant affirmed an affidavit on 6 June 2025 in support of the originating application.

19    By interlocutory application filed on 2 September 2025, the respondents seek orders that the proceeding be dismissed and judgment entered against the applicant. The orders are sought on the basis that:

(1)    The applicant has no reasonable prospect of successfully prosecuting the proceeding;

(2)    The proceeding is frivolous or vexatious;

(3)    No reasonable cause of action is disclosed; and/or

(4)    The proceeding is an abuse of the process of the Court.

20    The interlocutory application is supported by written submissions and two affidavits of Mr Geoffrey John Seymour Shaw, solicitor on the record for the respondents, sworn respectively on 1 September 2025 and 29 January 2026. The respondents’ written submissions raise a challenge to the Court’s jurisdiction to hear and determine the applicant’s originating application.

21    The applicant affirmed an affidavit on 15 January 2026, filed written submissions and appeared at the interlocutory hearing in person.

Jurisdiction

22    The respondents seek relief on the basis that the Court lacks jurisdiction to hear the originating application. Two arguments were pressed: first, that no officer of the Commonwealth was named as a party and, accordingly, jurisdiction could not arise under s 39B(1) of the Judiciary Act; and secondly, that the applicant did not identify any federal law in relation to which a matter might arise under s 39B(1A)(c) of the Judiciary Act. Those subsections relevantly provide:

39B Original jurisdiction of the Federal Court of Australia

Scope of original jurisdiction

(1) … the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) …

(b) …

(c) arising under any laws made by the Parliament …

23    In relation to the first of these objections, it is clear that the applicant seeks to impugn a decision of Judicial Registrar Birchall, an officer of the Commonwealth. At the interlocutory hearing, the respondents’ legal representative accepted that the jurisdictional deficiency could be cured by joining Judicial Registrar Birchall as a party.

24    In relation to the second objection, irrespective of whether it is expressly identified by the applicant in his originating application, it is clear that the impugned decision emanates from a source in federal law, and a dispute about the validity of that impugned decision gives rise to a matter under such federal law: Saitta Pty Ltd v Commonwealth of Australia [2000] FCA 1546; 106 FCR 554 at [89] (Weinberg J); Kennedy v Baker [2004] FCA 562; 135 FCR 520 at [9] (Branson J); Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 at [12]–[13] (Branson J); White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [110]–[112] (Lindgren J); cf McGowan v Migration Agents Registration Authority [2003] FCA 482; 129 FCR 118 at [34]–[35] (Branson J). That is sufficient to bring the matter within s 39B(1A)(c): see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ).

25    Accordingly, I do not accept the respondents’ challenge to the jurisdiction of the Court.

summary judgment

26    The respondents seek relief on the basis that the applicant’s originating application has no reasonable prospect of success.

27    In Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57] (footnote omitted):

It is, of course, well accepted that a court whose jurisdiction is regularly invoked … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

28    See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ); DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91; 310 FCR 361 at [1] (Mortimer CJ), [64] (Stewart J) and [206] (Stellios J).

29    As I recently noted in Svehla v Svager [2026] FCA 185 at [40]–[42]:

The exercise of the power to summarily terminate proceedings “is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 (the Court); see also Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] (French CJ and Gummow J). The power “will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”: Spencer at [22] (French CJ and Gummow J).

In Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30], Reeves J said that the circumstances warranting summary judgment include those “where a party completely fails to identify any valid claim or cause of action, to the court or fails to provide any factual material that could amount to a valid claim, in the materials he or she places before the court, having been given a reasonable opportunity to do so”.

Some care must be taken when considering a summary judgment application against a litigant in person. However, the difficulties experienced by litigants in person “cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties”: Manolakis v Carter [2008] FCAFC 183 at [9]‍. See also Ferdinands v South Australia (No 2) [2017] FCA 1436 at [53]‍–‍[55].

30    In order for the applicant to have any prospect of success, he must be able to demonstrate a case for jurisdictional error. Jurisdictional error would be required for relief by way of a writ under s 39B(1) of the Judiciary Act if Judicial Registrar Birchall were joined as a party and it would be a sufficient ground for prima facie relief under s 39B(1A)(c).

Was there jurisdictional error?

Legislative scheme

31    Whether there has been jurisdictional error depends on the scope of Judicial Registrar Birchall’s jurisdiction, requiring close attention to the legislative scheme. The procedure for the taxation of costs is set out in Part 40 of the Rules. Before a bill of costs is taxed, a taxing officer is to make an estimate of the total for which the certificate of taxation would be likely to issue: r 40.20(1). A party interested in the bill who wants to object to the estimate must file a notice of objection within the relevant time: r 40.21(1).

32    Subrule 40.21(2) deals with the options available to a Registrar on receipt of a notice of objection:

(2) On receipt of the notice of objection … a Registrar may direct:

(a)  the parties to attend before a designated Registrar for a confidential conference to:

(i) identify the real issues in dispute; and

(ii) reach a resolution of the dispute; or

(b) a provisional taxation; or

(c) that the taxation of the bill proceed.

33    Rule 40.22 deals with a successful outcome of a conference:

If the parties achieve a resolution of the dispute at a confidential conference, a Registrar will:

(a) issue a sealed certificate of taxation for the amount agreed by the parties; and

(b) pay the monies paid into the Litigants' Fund in accordance with paragraph 40.21(1)(b) to:

(i) a party, in accordance with any agreement between the parties; or

(ii) if there is no agreement between the parties—to the party who objected to the estimate.

34    A taxing officer may, in the absence of the parties, provisionally tax a bill: r 40.23(1). However, notwithstanding the provisional taxation of a bill, a party interested in a bill still has the opportunity to request a full taxation: r 40.23(4).

35    Rule 40.24 provides that a Registrar will give notice that a bill is to be taxed in any of the following circumstances:

(1)    “[A] Registrar has directed … that the taxation of the bill proceed”: r 40.24(a);

(2)    “[A] resolution is not achieved at a confidential conference”: r 40.24(b); or

(3)    “[A] party has given notice requesting a full taxation…”: r 40.24(c).

36    If notice that a bill is to be taxed is given, “a party on whom the bill has been served and who wants to object to any item of the bill must file and serve on the parties interested in the bill a notice of objection”: r 40.25(1). The notice of objection must identify each item to which the objection is taken and briefly state why the item should be disallowed, the amount by which the item should be reduced and any authority on which the party relies: r 40.25(1). The party who filed the bill, and any party affected by any objection, must file and serve a notice of response: r 40.26(1). In accordance with Part 40, the taxing officer is to then tax the bill and, on completion, issue a certificate of taxation which has the force and effect of an order of the Court: rr 40.27(6), 40.32(2).

37    Two points may be observed about the legislative scheme. First, a conference is not a step that invariably arises in the taxation process. On receipt of an objection to an estimate, a Registrar may direct that a conference be held, however, that is only one of three options available to the Registrar. Instead of directing the holding of a conference, a Registrar may direct either a provisional taxation or that the taxation of the bill proceed: r 40.21(2).

38    Secondly, while the resolution of the dispute at the conference will lead to the issuing of a sealed certificate of taxation that has the force and effect of an order of the Court, the failure to reach a resolution results in the taxation process continuing. That process allows an opportunity for a party on whom the bill has been served to object to any item before the process results in a sealed certificate of taxation. In short, if a conference is directed, but does not produce an outcome, the parties have the opportunity to dispute the bill of costs before it gives rise to binding rights and duties on the parties.

Consideration

39    As foreshadowed, the applicant’s case for jurisdictional error by way of breach of procedural fairness was put on two bases:

(1)    The applicant claimed that Judicial Registrar Birchall refused to consider his request to vacate the conference date and accompanying medical evidence before conducting the conference; and

(2)    The applicant contended that he was denied an opportunity to participate in the conference.

40    As indicated at the outset, the first submission must be rejected. On 29 May 2025, Judicial Registrar Birchall invited the applicant to request that the conference be vacated, indicating that Mr McFadyen’s affidavit could be attached. Mr McFadyen made that request the same day and attached the affidavit in support. Later on 29 May 2025, Judicial Registrar Birchall denied the request and indicated that he took account of the affidavit.

41    As such, the question to be determined on the interlocutory application for summary judgment is whether Judicial Registrar Birchall’s decision to hold the conference in the applicant’s absence was affected by jurisdictional error. If there was no such error, then the applicant has no prospect of success with his claims in the originating application, and the respondents are entitled to summary judgment.

42    The second submission cannot succeed on the basis that the applicant was denied an opportunity to contest the costs estimate. As indicated above, the failure of a conference to produce a resolution does not preclude the applicant’s opportunity to dispute the bill of costs.

43    However, in oral submissions, the applicant further submitted that he was denied a meaningful opportunity to have a court-supervised process for the mediation of his objections to the taxation estimate. As indicated above, if the outcome of the conference was to reach a resolution, that would have resulted in a binding certificate.

44    In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] Gleeson CJ said that:

… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

45    This statement was endorsed in Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [156]–[157] (Hayne, Crennan, Kiefel and Bell JJ) and [188] (Gageler J) in the context of decision-making by courts.

46    For the following reasons, I do not accept that the applicant has been denied procedural fairness. First, the conference was held because the applicant, through his then solicitor, had objected to the taxation officer’s estimate.

47    Secondly, the objection to the estimate was filed by the applicant’s then solicitor on 3 September 2024. The applicant was notified on 16 April 2025 that the conference would be held on 30 May 2025. I accept the respondents’ submissions that there was sufficient time ahead of the conference on 30 May 2025 for the necessary instructions to have been given by the applicant to his then solicitor as to the basis of the objection to the estimate.

48    Further, despite his medical certificate dated 26 May 2025 (which anticipated a six-week period of illness), I am prepared to infer from the applicant’s personal attempts to forward the objection documents to the Registry on 29 May 2025 and, again, on 31 May 2025, that he was capable of providing instructions to his solicitor at the time of the conference (even if not able to attend the conference in person). The applicant’s written submissions stated that his personal attempt to lodge his objection on the evening before the conference demonstrated his willingness to engage with the process even while medically incapacitated from “attending any legal proceedings”. If that were the case, it is unclear why he was not also able to provide instructions on the day of the conference.

49    Thirdly, in any event, Mr McFadyen appeared for the applicant at the conference. I accept the respondents’ submission that, because Mr McFadyen filed the objection to the taxation estimate, he could reasonably be taken to have been familiar with the matter. It is a reasonable inference that Mr McFadyen would have been in a position to represent the applicant’s interests in the conference, particular given that the issues to be resolved concerned items in a bill of costs—issues that are more likely to be within Mr McFadyen’s expertise than in the applicant’s knowledge.

50    In my view, in these circumstances, it cannot be said that the applicant was denied an opportunity to meaningfully participate in a court-supervised process for the mediation of his objection. Judicial Registrar Birchall’s decision to proceed with the confidential conference in the applicant’s absence did not produce “practical injustice” (Lam at [37] (Gleeson CJ)). The applicant had a “fair opportunity” and a “real practical opportunity” (Pompano at [188] and [202] (Gageler J)), at the very least through attendance by his solicitor, to participate in the conference. Consequently, there was no jurisdictional error.

51    For completeness, the applicant further contended that:

(1)    The refusal to accept the objection documents for filing prevented the Court from considering material directly relevant to the fairness of the process. Since the applicant still has the opportunity to contest the bill of costs, this argument can only be understood as contending that Judicial Registrar Birchall failed to take account of the applicant’s medical position before deciding to proceed with the conference. For the reasons stated above, this argument must be rejected.

(2)    He was left without any effective remedy to address the procedural unfairness. Once it is accepted that there has been no procedural unfairness and the applicant can contest the bill of costs in the balance of the taxation process, this submission is misconceived.

(3)    He was directed by the Registry to file the originating application in this proceeding rather than an interlocutory application in the 2020 proceeding. That may be so, however, the question on the interlocutory application in this proceeding is whether the applicant has any real prospect of success.

Disposition of THIS PROCEEDING

52    There is no basis for the relief claimed by the applicant in the originating application. The decision by Judicial Registrar Birchall to hold the confidential conference in the applicant’s absence was not, in the circumstances, affected by jurisdictional error. As such, no order could be made directed to the holding of that conference.

53    Furthermore, in light of this conclusion, there is no basis for the filing of the objection documents and, accordingly, they were rightly rejected. Consequently, no order could be made requiring the objection documents to be accepted for filing.

54    Additionally, there is no basis for the claimed order “permitting the Applicant to lodge and pursue any Notice of Objection or Notice of Response relating to the taxation of costs arising from the 30 May 2025 costs conference”. There is nothing preventing the applicant from participating in the balance of the process for the taxation of costs.

55    Consequently, the applicant has no real prospect of successfully prosecuting his originating application and, accordingly, summary judgment should be given for the respondents pursuant to s 31A(2) of the Federal Court Act in relation to the whole of the proceeding.

Costs of this proceeding

56    The Court has a broad discretion to award costs in a matter as it thinks fit: Federal Court Act, s 43(2). The usual rule is that costs follow the event. I see no reason why the respondents, as the successful parties, should not be entitled to a costs order in their favour.

Lump sum

57    The respondents seek a lump sum costs order. Without limiting the discretion of the Court, s 43(3)(d) of the Federal Court Act recognises that the Court can award a party costs in a specified sum. As noted by Allsop CJ, Besanko and Middleton JJ in Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403 at [20]:

… Particular circumstances that may make a lump sum order especially appropriate include where in a large and complex commercial matter it would save the time, trouble, expense and aggravation of a taxation; where a taxation would require the parties to consume additional time and incur additional expenditure prolonging already protracted litigation; and generally to avoid an ongoing, counter-productive dispute as to costs, in the interests of achieving finality.

58    The respondents submit that a lump sum costs order is appropriate in this proceeding because:

(1)    The originating and interlocutory applications form part of a discrete proceeding in respect of which the simplicity of a lump sum assessment is appropriate and would avoid the expense and delay and aggravation associated with protracted costs litigation;

(2)    In contrast, requiring the respondents to obtain a further bill of costs in respect of the applications will likely lead to a further taxation process with further cost and delay, the inconvenience of which would be considerable; and

(3)    The submissions apply with greater effect given that the taxation of the bill of costs for the 2020 proceeding will (following these orders) proceed.

59    I am satisfied that a lump sum costs order should be made. In circumstances where the dispute in the proceeding concerns the taxation of costs from a previous proceeding, a further taxation process, with the possibility of further disputation, is undesirable in bringing finality to the proceedings between the parties. The prospect of further protracted costs litigation would not be compatible with the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Federal Court Act, s 37M(1).

Indemnity costs

60    The respondents also seek a costs order on an indemnity basis for the following reasons:

(1)    The originating application had no prospect of success and it was unreasonable for the applicant to have brought the application and maintained it in the face of the interlocutory application;

(2)    The applicant was on notice of his originating application having no prospect of success by a letter from the respondents dated 20 August 2025. The applicant nevertheless chose to maintain the application; and

(3)    The originating application was, in effect, improper satellite litigation which the applicant commenced to delay the taxation of the bill—a process during which he has the opportunity to articulate his objections to the bill, and following which his appeal rights arise pursuant to the Rules.

61    In oral submissions, the respondents’ legal representatives accepted that, for the Court to order costs on an indemnity basis, I would need to be satisfied that the commencement of the proceeding was unreasonable in the circumstances.

62    I am not satisfied that costs should be awarded on an indemnity basis. While the respondents have been successful in seeking summary judgment, I am not persuaded that it was unreasonable for the applicant to seek to vindicate his claims. The applicant did not have the benefit of legal representation when he received the respondents’ letter dated 20 August 2025. The authorities relied on by the respondents do not support an award of indemnity costs in such circumstances: cf Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [44] (Graham J); Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 at [4]–[5] (Finn J).

63    The costs should be paid on a party/party basis.

Quantum of lump sum costs order

64    The respondents seek a lump sum costs order in the amount of $48,422 relying on a costs summary presented to the Court in the affidavit of the respondents’ solicitor, Mr Geoffrey John Seymour Shaw, sworn on 26 January 2026.

65    Before determining the quantum of the lump sum costs order, I will provide the applicant with an opportunity to file evidence in response to the affidavit sworn by Mr Shaw on 26 January 2026.

Associate:

Dated:    31 March 2026