Federal Court of Australia

Pandey v Dr Tiffany Tam Pty Ltd [2026] FCA 1153

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to seek leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

RANGIAH J:

1    On 31 March 2026, a judge of this Court summarily dismissed the applicant’s application for judicial review of a decision of a Judicial Registrar of the Court made on 30 May 2025 to proceed with a “confidential conference” under r 40.21 of the Federal Court Rules 2011 (Cth) (the Rules) in the absence of the applicant.

2    The applicant seeks an extension of time to seek leave to appeal under r 35.14 of the Rules.

3    The application was filed on 17 June 2026 outside the 14-day time limit for filing an application for leave to appeal under r 35.13 of the Rules. The applicant, who is a litigant in person, explains that he mistakenly thought that the judgment was final rather than interlocutory and that he had 28 days to appeal. He initially lodged a notice of appeal for filing on 28 April 2026 before he was advised he needed an extension of time to seek leave to appeal.

4    The principles applicable to an extension of time to seek leave to appeal were recently summarised by Feutrill J in Kirkham v Monash University (No 2) [2026] FCA 454 at [19]. The factors that the Court may take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the proposed appeal and any prejudice to the respondents. Ignorance of the time limit is not regarded as a satisfactory explanation for the delay, but a less persuasive explanation may be sufficient where the extension is for a comparatively short period of time. The overarching consideration is whether it is in the interests of the administration of justice to grant an extension of time in the circumstances of the case.

5    The discretion to grant leave to appeal is generally exercised having regard to two interrelated factors. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the appellate court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. When evaluating prospects of success, the Court considers the grounds of the proposed appeal at a reasonably impressionistic level: Olson v Keefe [2019] FCA 339 at [9]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63]; Kirkham v Monash University (No 2) [2026] FCA 454 at [22].

6    In circumstances where the applicant’s delay is fairly short and the explanation, although not acceptable, is understandable, and there is no prejudice to the respondent, the application substantially turns upon the merits of the proposed appeal.

Procedural history

7    In order to understand the grounds of the proposed appeal, it is necessary to begin by describing the procedural history of the proceeding before the Judicial Registrar.

8    In Nitin Pandey Pty Ltd v Curtin Chambers Pty Ltd, in the matter of Curtin Chambers Pty Ltd (No 2) [2023] FCA 1286, the Court ordered that the applicant and an associated corporation pay the respondents’ costs as agreed or taxed.

9    On 7 June 2024, the respondents filed a bill of costs in respect of the costs orders. On 16 August 2024, a Judicial Registrar gave notice under r 40.20(3) of the Rules of the estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. On 4 September 2024, the applicant lodged a notice of objection to the costs estimate.

10    On 16 April 2025, the parties were notified that the Judicial Registrar had listed the matter for a confidential costs conference at 10.00 am on 30 May 2025.

11    At that stage, the applicant was represented by a solicitor, Mr McFadyen, who had filed a notice of acting on 28 August 2023. It was Mr McFadyen who had filed the notice of objection on behalf of the applicant on 4 September 2024.

12    On 26 May 2025, the applicant obtained a medical certificate from his treating doctor which stated that the applicant had a medical condition and should be, “exempted from attending any legal proceedings for the next 6 weeks”. On 28 May 2025, Mr McFadyen sought the respondents’ consent to an adjournment of the confidential conference, which was refused by the respondents.

13    On 29 May 2025, the applicant lodged an interlocutory application seeking to vacate and relist the confidential conference, together with a supporting affidavit of Mr McFadyen annexing the applicant’s medical certificate, for filing. That material was not accepted for filing. Mr McFadyen then sent an email to the Registry forwarding his affidavit. The respondents’ lawyers emailed the Registry indicating their opposition on the same day.

14    Later on 29 May 2025, the parties were notified that the Judicial Registrar, having taken Mr McFadyen’s affidavit and the parties’ emails into account, had decided not to vacate the confidential conference.

15    The confidential conference took place on 30 May 2025. Mr McFadyen attended, but the applicant did not. Mr McFadyen indicated that he did not have instructions from the applicant.

16    The Judicial Registrar did not make any orders during or after the confidential conference. The parties were notified on 24 June 2025 that once a Judicial Registrar had been allocated to conduct a taxation, the Judicial Registrar would issue a notice under r 40.24(b). That rule states that a Judicial Registrar will give notice that a bill is to be taxed if a resolution is not achieved at a confidential conference.

17    On 31 May 2025, the applicant personally emailed the Registry conveying his objection to the holding of the conference on the previous day and attaching the applicant’s medical certificate and Mr McFadyen’s affidavit. Apparently, his previous attempt to email the Registry on 29 May 2025 had been sent to the incorrect email address.

18    On 17 June 2025, Mr McFadyen filed notices of ceasing to act for the applicant and the applicant’s associated company.

19    On 4 August 2025, the parties were notified that the taxation had been allocated to a Judicial Registrar. On 7 August 2025, they were notified that the progress of the taxation would be held over in view of the judicial review application brought by the applicant.

The proceedings before the primary judge

20    On 27 June 2025, the applicant filed his application for judicial review of the Judicial Registrar’s decision to proceed with the confidential conference in his absence.

21    On 2 September 2025, the respondents applied 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.

22    The primary judge observed that the applicant’s application for judicial review was, in substance, a challenge, on procedural fairness grounds, to the Judicial Registrar holding the confidential conference in the applicant’s absence.

23    The primary judge noted that the applicant’s case for jurisdictional error by way of denial of procedural fairness was put on two bases. The first was that the Judicial Registrar had failed to consider the applicant’s request to vacate the confidential conference and accompanying material before conducting the conference. The primary judge noted that on 29 May 2025, the Judicial Registrar denied the request for the conference to be vacated and indicated that he had taken into account the affidavit. Accordingly, the primary judge was satisfied that this basis for the applicant’s ground could not succeed.

24    The primary judge noted that the applicant’s second ground was that he was denied an opportunity to participate in the confidential conference. The applicant submitted that he had been denied a meaningful opportunity to have a court-supervised process for the mediation of his objections to the taxation estimate.

25    The primary judge determined that the applicant could not establish that he had been denied procedural fairness on the second basis. His Honour’s first reason was that the confidential conference was held because the applicant had objected to the taxation officer’s estimate and the failure of the conference to produce a resolution did not preclude the applicant from disputing the bill of costs.

26    The second reason given by the primary judge was that the applicant had sufficient time ahead of the conference on 30 May 2025 to give the necessary instructions as to the basis of his objection to the taxation estimate to his then solicitor. Relatedly, a third reason given by his Honour was that the applicant had the opportunity to appear at the confidential conference through his then solicitor. His Honour also inferred from the applicant’s personal attempts to forward documents to the Registry on 29 and 31 May 2025 that he was capable of providing instructions to his solicitor even if he was not able to attend the conference in person. His Honour also observed that Mr McFadyen had appeared for the applicant at the conference and there was a reasonable inference that Mr McFadyen would have been in a position to represent the applicant’s interests at the conference.

27    The primary judge held that the applicant could not establish that he had been denied an opportunity to meaningfully participate at the conference and, consequently, had no reasonable prospect of prosecuting the proceeding. His Honour ordered that the respondents have summary judgment against the applicant and that the applicant pay the respondents’ costs of the proceeding on a party and party basis and in a lump sum to be determined.

The proposed grounds of appeal

28    The applicant’s proposed grounds of appeal assert, in summary:

(1)    The primary judge erred by inferring that Mr McFadyen, “could reasonably be taken to have been familiar with the matter”, and was, “in a position to represent the applicant’s interests in the conference”, when those inferences were not open on the evidence before the Court and were contradicted by certain correspondence between the applicant and Mr McFadyen that the applicant seeks to adduce in the proposed appeal.

(2)    His Honour erred by inferring that the applicant was capable of providing substantive legal instructions to his solicitor because he was personally emailing the Registry when further evidence proposed to be adduced demonstrates that he explicitly informed Mr McFadyen that he was unable to review legal documents or provide substantive instructions.

(3)    His Honour erred by resolving disputed factual issues on a summary basis contrary to Spencer v Commonwealth (2010) 241 CLR 118, namely issues of whether Mr McFadyen had authority to represent the applicant’s interests at the confidential conference and whether the applicant had a meaningful opportunity to participate in the conference.

(4)    His Honour denied the applicant procedural fairness by drawing an inference that Mr McFadyen was in a position to represent the applicant’s interests in the conference without putting that proposition to the applicant.

29    It is appropriate to place the decision of the Judicial Registrar to refuse to vacate the confidential conference and proceed with the conference in the context of Div 40.2 of the Rules, which deals with taxation of costs.

30    Rule 40.17 provides that a party who wants to have costs taxed must file a bill for taxation. Rule 40.20(1) provides that a taxing officer is to make an estimate of the approximate total for which a certificate of taxation would be likely to issue. Under r 40.21(1), a party may file a notice of objection. Rule 40.21(2) provides that the Judicial Registrar may direct that the parties attend before a Judicial Registrar for a confidential conference to identify the real issues in dispute and reach a resolution of the dispute.

31    Under r 40.24(b), if a resolution is not achieved at a confidential conference, the Judicial Registrar will give a notice that a bill is to be taxed. A notice under this provision has not yet been given pending the outcome of the judicial review proceeding.

Consideration

32    In respect of his first proposed ground, the applicant contends that the primary judge erred in drawing inferences that Mr McFadyen, “could reasonably be taken to have been familiar with the matter”, and was, “in a position to represent the applicant’s interests in the conference”. However, Mr McFadyen was the applicant’s legal representative in the proceeding, having filed a notice of acting and not having withdrawn that notice by the time of the conference. It was Mr McFadyen who had lodged a notice of objection on 4 September 2024 and corresponded with the Judicial Registrar’s associate and the Registry in relation to the confidential conference. Mr McFadyen also appeared at the confidential conference, although he indicated that he did not have instructions. In these circumstances, it was entirely open to the primary judge to infer that Mr McFadyen was both familiar with the matter and in a position to represent the applicant’s interests at the conference, even in the physical absence of the applicant.

33    The applicant has indicated an intention to seek leave to file “fresh evidence” consisting of correspondence between the applicant and Mr McFadyen on 28 and 29 May 2025. That correspondence indicates that the applicant had withdrawn Mr McFadyen’s instructions prior to the conference and that Mr McFadyen confirmed in writing that he held no instructions and stated that his participation in the conference would be limited to advising the Court that he did not hold instructions to make representations. Even assuming that the emails relied upon by the applicant would be admitted into evidence in any appeal, it would not assist him to demonstrate any denial of procedural fairness by the Judicial Registrar or error on the part of the primary judge. The correspondence shows there was a deliberate choice by the applicant to instruct his solicitor not to represent his interests in the conference. The obvious inference is that the applicant sought to obstruct the conduct of the conference by withdrawing his instructions to the solicitor. The applicant’s conduct does not detract from the primary judge’s findings that Mr McFadyen was familiar with the matter and would have been in a position to represent the applicant’s interests at the conference.

34    The applicant’s second ground asserts that the primary judge erred in drawing an inference that the applicant was capable of providing instructions to Mr McFadyen at the time of the conference. However, the fact that the applicant had personally made attempts to file documents in the Registry on 29 May 2025 and again on 31 May 2025 provides ample support for his Honour’s inference that the applicant was capable of providing instructions to his solicitor. That view is only reinforced by the email sent by the applicant to his solicitor deliberately withdrawing his instructions.

35    The applicant’s third ground asserts that the primary judge erred in determining genuinely disputed questions of fact in a summary judgment application, contrary to Spencer v Commonwealth (2010) 241 CLR 118 at [26]. However, the fundamental issue before the Court was whether the applicant had any reasonable prospect of successfully prosecuting his case that he had been denied a reasonable opportunity to participate in the conference before the Judicial Registrar. What was a reasonable and fair opportunity depended on the circumstances known to the Judicial Registrar at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known: cf. Kioa v West (1985) 159 CLR 550 at 627 (Brennan J).

36    In this case, the question of whether the applicant had any reasonable prospect of demonstrating that he was denied procedural fairness depended upon what was known to the Judicial Registrar when the Judicial Registrar decided to proceed with the confidential conference in the applicant’s absence. The known material included the terms of the medical certificate (which merely stated he should be “exempted from attending any legal proceedings”), the solicitor’s correspondence with the Registry and that his solicitor in fact attended the conference. The issue of whether he was provided with a reasonable opportunity could not be determined, for example, by reference to evidence that might have been given by the applicant at trial that he was not in fact capable of giving instructions to his solicitor. In these circumstances, the primary judge did not commit the error alleged by the applicant.

37    The applicant’s fourth ground asserts that he was denied natural justice before the primary judge because his Honour did not put to him the question of whether Mr McFadyen would have been in a position to represent the applicant’s interests at the conference. However, his Honour’s obligation did not extend beyond advising of any adverse conclusion which was not obviously open on the known material: cf. Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. Where the applicant’s case was that he was denied an opportunity to meaningfully participate in the conference based on his absence on medical grounds and where his solicitor had in fact appeared at the conference, there was an obvious issue as to whether the solicitor was capable of representing the applicant at the conference. The primary judge was not required to specifically draw the applicant’s attention to that issue.

38    In the circumstances of the case, the applicant has not demonstrated any prospect of success sufficient to justify a grant of leave to appeal.

39    Further, the applicant has not demonstrated that he would suffer any substantial injustice if leave to appeal were refused. He claims that the injustice he would suffer is being denied a court-supervised process to resolve the question of taxation of costs awarded against him. However, he has not explained why he embarked upon judicial review of the Judicial Registrar’s decision rather than seeking the holding of a further conference or mediation in an attempt to resolve the costs issue. That course remains open to him now.

40    It may be noted that the respondents submit that an order should be made pursuant to r 2.27 of the Rules and s 23 of the Federal Court of Australia Act restricting the applicant from filing further applications that would interrupt the taxation of costs without the leave of the Court. The respondents have not filed any formal application seeking that relief. I am not willing to make an order of the kind sought by the respondents in the absence of a formal application.

41    The application for an extension of time to seek leave to appeal will be refused with costs.

Associate:    

Dated:    17 August 2026