Federal Court of Australia

Sunche Pty Ltd v Roll’d Australia Pty Ltd [2026] FCA 977

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs of the case management hearing on 27 May 2026 fixed in the sum of $1,000.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    These reasons concern the issue of whether the respondent should pay the costs of the first case management hearing in this proceeding that was adjourned because the video and (or) audio link of the respondent’s counsel could not be maintained for the duration of the hearing. These costs were reserved by an order made on 27 May 2026. Thereafter, the parties filed written submissions on the question of costs. The costs may be determined without an oral hearing under s 20A of the Federal Court of Australia Act 1976 (Cth) because there is no real issue of fact relevant to determination of the matter and the legal arguments in relation to the matter can be dealt with adequately by written submissions.

2    In accordance with National Court Framework and Case Management Practice Note (CPN-1) a first case management hearing in the proceeding was listed for 29 May 2026. By email on 25 May 2026 the respondent’s legal representatives requested leave for the respondent’s counsel to appear at the case management hearing via telephone because that person was located in New South Wales and the hearing was listed in the Western Australian District Registry of the Court.

3    Section 47B(1) of the Federal Court Act provides that the Court or a Judge may, for the purposes of any proceeding, direct or allow a person to appear before the Court or the Judge or make a submission to the Court or the Judge by way of video link, audio link or other appropriate means. Section 47C provides that the Court or a Judge must not exercise the power in relation to a video link or an audio link unless satisfied of certain conditions relating to the availability of appropriate facilities at each end of the link. It is routine for lawyers to appear and make submissions in this Court by way of Webex video link (and previously Microsoft Teams video link) or by way of telephone audio link. A lawyer equipped with a standard desktop or laptop computer connected to a telecommunication network or a fixed line or mobile telephone is usually able to establish and maintain an appropriate video or audio link for the purpose of appearing and making submissions to the Court or a Judge. For these reasons, the docket judge was satisfied that the necessary pre-conditions for allowing the respondent’s counsel to appear and make submissions via video or audio link were met. Accordingly, the Court made a Webex meeting link and telephone number available for the respondent’s counsel to establish a video or audio link for the case management hearing.

4    The first case management hearing is an integral element of the case management framework. The purpose of the hearing is for parties to make submissions to the Court as to the appropriate course of the efficient preparation of the matter for trial, including the need for any discovery, the most appropriate method of the preparation of evidence in light of the issues in contest, and the most appropriate method of trial: CPN-1 at [8.4]. The first case management hearing, if conducted properly, may minimise or eliminate the need for further case management hearings: CPN-1 at [8.9]. At the time the parties’ legal representatives were notified of the listing of the first case management hearing, they were informed, amongst other things, of the purpose of that hearing and that a person with authority to provide instructions on all aspects of the future management of the proceeding should attend in person or be available by electronic communication on short notice and that counsel briefed should appear and be instructed by the most senior solicitor representing the party.

5    Prior to the first case management hearing, the parties provided the Court with a minute of proposed consent orders dealing with many of the interlocutory steps that are usually the subject of consideration at the first case management hearing. However, the mere fact that parties have agreed upon orders and the manner in which a proceeding should be case managed, does not alleviate the need to participate in a first case management hearing and explain the agreed approach to the Court such that the Court may consider the extent to which the agreed orders and approach is or is not appropriate for the proceeding in question.

6    In this case, there was an initial difficulty establishing a video link with the respondent’s counsel. Evidently, that person sought to establish a video link using a mobile telephone rather than through a computer with an internet connection because he was in the process of attending another court hearing and not located in an office. That difficulty resulted in a delay calling on the matter for the case management hearing.

7    After the link was established and the matter was called on for hearing, the applicant’s counsel appeared in person with an instructing solicitor. A representative of the applicant was also in attendance. The respondent’s counsel appeared via video link. The presiding judge requested that each of the parties make submissions on the nature of the issues in dispute and the likely judicial and administrative resources that will be required to resolve those issues. During the course of the applicant’s submissions the video link of respondent’s counsel became disconnected. The hearing was then adjourned for some time to re-establish a video or audio link with the respondent’s counsel. Once connection between the respondent’s counsel and the Court was re-established the hearing was resumed. During the course of the presiding judge informing the respondent’s counsel that if he was unable to maintain a reliable connection the respondent would not be allowed to attend via video link in the future, the link of the respondent’s counsel again became disconnected. The presiding judge then made orders based on the parties’ minute of proposed consent orders and adjourned the case management hearing with costs reserved.

8    The Court has a broad discretion to award costs under s 43 of the Federal Court Act. While the discretion is unconstrained by legal rule, it is to be exercised judicially and, in general, in accordance with settled principles that avoid arbitrariness and serve the need for consistency: e.g., Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224 at [15]. The discretionary power to award costs must be exercised consistently with the objects sought to be secured by s 37M namely, the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible having regard to, relevantly, the efficient use of the judicial and administrative resources available for the purposes of the Court: s 37M(1), s 37M(3).

9    In this case, in substance, the respondent failed to appear at the first case management hearing because its counsel was not able to maintain a continuous and reliable video or audio link with the Court for the duration of the hearing. Ordinarily where a party has notice of a hearing and fails to appear without reasonable explanation resulting in an adjournment and aborted hearing, the non-appearing party should pay the wasted costs of the other party. However, here, the respondent submits that it should not be ordered to pay the applicant’s costs because no material prejudice arose from its failure to meaningfully appear at the case management hearing as orders were ultimately made by consent. Further, the adjournment did not result in any wasted contested hearing or substantive argument.

10    The respondent’s submissions are not accepted. Although orders were ultimately made in terms of the minute of consent orders proposed by the parties, the objects of the first case management hearing set out in CPN-1 could not be achieved. Subject to settlement of the proceeding in the meantime, it will be necessary to relist and conduct a first case management hearing to ensure that the proceeding is case managed such that the judicial and administrative resources of the Court are appropriately allocated and utilised notwithstanding that case management orders have already been made on the assumption that the agreed orders are appropriate for that purpose.

11    The respondent further submits that the respondent’s attendance by mobile telephone was a consequence of the legal practitioner with carriage of the matter becoming unavailable at short notice due to personal circumstances and the respondent’s counsel having pre-existing commitments at another court hearing in New South Wales. No affidavit evidence was filed in support of those submissions. Even if the assertions of fact contained in the submission were accepted, those assertions do not excuse a failure to make a meaningful appearance at a court hearing. It remains the responsibility of the party requesting a video or audio link to ensure that the facilities available to establish that link are adequate and appropriate. Moreover, a party that is not able to attend a court hearing due to the unavailability of its counsel may apply for an adjournment before the hearing date or request the other party’s consent to an adjournment. Alternatively, the party may brief alternative counsel to appear on that party’s behalf. There is nothing before the Court to suggest that the respondent could not have applied for an adjournment or briefed alternative counsel to appear in person or by a reliable video or audio link. Therefore, it is also not accepted that the respondent has provided any reasonable explanation or excuse for its counsel’s inadequate and failed appearance via video or audio link.

12    For the foregoing reasons, the respondent should pay the applicant’s costs of the aborted case management hearing held on 29 May 2025. It is appropriate to fix the amount of those costs in a lump sum. Taking into account the inevitable wasted preparation for and attendance at the hearing and the Court’s request and expectation that counsel briefed should appear at the first case management hearing with the most senior instructing solicitor, costs will be fixed in the sum of $1,000.

Associate:

Dated:    22 July 2026