Federal Court of Australia

Jadwan Pty Ltd v Rae & Partners (a firm) (Extension of Time) [2026] FCA 1513

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 24 October 2025 be dismissed.

2.    The applicant pay the fourth respondent’s costs of the interlocutory application.

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

REASONS FOR JUDGMENT

DOWLING J

1    The applicant, Jadwan Pty Ltd, seeks extensions of time to review two decisions of a Registrar of this Court. The first decision, dated 28 June 2024 (the 2024 decision), determined that the applicant pay the costs of the fourth respondent fixed in the amount of an “other sum”. The second decision, dated 9 September 2025 (the 2025 decision), determined the sum of those costs. If the applicant is granted an extension of time, it seeks to review both decisions pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth).

2    The substantive proceeding was commenced in the Supreme Court of Tasmania in 2003 and cross-vested to this Court in 2016. Following the trial, the primary judge dismissed the proceeding and relevantly made the following orders (the 2018 orders):

1.    The application as against each Respondent be dismissed.

2.    The Applicant pay the costs of the First, Second, Third, Fourth and Fifth Respondents as assessed or agreed.

3.    The Respondents have liberty to apply for costs to be awarded on other than a party and party basis within 28 days from the date of this order.

The applicant’s appeal against the primary judge’s decision was dismissed by the Full Court. The applicant’s application for special leave to appeal against the decision of the Full Court was dismissed by the High Court of Australia.

3    An application to review a decision of a Registrar under s 35A(5) of the Federal Court Act must be made within 21 days after the day on which the power was exercised: r 3.11(2) of the Federal Court Rules 2011 (Cth). The application to review the 2024 decision is approximately 15 months out of time. The application to review the 2025 decision is approximately one month out of time.

4    For the reasons explained below the applicant’s application for an extension of time is refused.

Principles relevant to an extension of time to bring review

5    Section 35A(5) of the Federal Court Act provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under section 35A(1) of the Federal Court Act, may, within the time prescribed, or within any further time allowed, apply to the Court to review that exercise of power.

6    Rule 1.39 of the Rules provides that the Court may extend a time fixed by the Rules, which relevantly permits the Court to extend the time fixed by r 3.11 described above.

7    In Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq) [2020] FCA 163 at [16], Perram J explained that in an extension of time application to review the orders of a Registrar, the guiding principles require the moving party to demonstrate (a) some sufficient explanation for why the application was not filed within time and (b) that the proposed review application has sufficient merit to justify permitting the matter to be considered a second time: citing Butler v Moore [2007] FCA 1053 and Project Lab North America Pty Ltd v Bell Microproducts Inc [2007] FCA 306. His Honour said further that those two inquiries are not wholly distinct and that the length of the delay has its role to play too.

8    In Nikolic v Twitter International Company [2025] FCA 345 at [26], Anderson J similarly said that the principal matters the Court takes into consideration when determining whether to grant an extension of time are: (a) the reasons for the delay; (b) whether there is an arguable case; and (c) prejudice to the respondent to the prospective application or other parties: citing Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348–9 (Wilcox J); Tuscan Capital; Deputy Commissioner of Taxation v Australian Investment & Property Corporation Pty Ltd [2014] FCA 666 at [8] (Gordon J); Owen-Pearse v Lander Land Company Pty Ltd [2018] FCA 2077 at [16]–[18] (Banks-Smith J). In Nikolic, Anderson J considered the reasons for the delay and the merits of the application and declined to exercise the r 1.39 discretion: see [27]–[39].

9    Consistent with those authorities the parties accepted that the relevant considerations under r 1.39 were:

(a)    the reasons for the delay and whether there was a sufficient explanation;

(b)    whether there is sufficient merit if an extension of time were granted; and

(c)    whether there would be prejudice to the fourth respondent (as the party that would respond to the prospective application for review) or other parties if an extension was granted.

10    The question of whether the application has sufficient merit “proceeds by reference to the relief sought if the extension is granted given that reviews of a registrar’s exercise of power proceed de novo”: Nikolic at [33].

Affidavit material relied upon

11    In support of its interlocutory application, the applicant relied on two affidavits. The first, the affidavit of Ms Julie Alexander, a director of Jadwan, set out some background circumstances and sought to provide some explanation for the delay. The second, the affidavit of Mr Alan Thompson, a costs consultant engaged by the applicant, set out what he alleged were the errors in the fourth respondent’s approach to the quantification of costs and what he says is an appropriate amount for those costs and disbursements.

12    The fourth respondent relied on three affidavits. The first, the affidavit of Mr Christopher Grisenti (the Grisenti Affidavit), a costs lawyer engaged by the fourth respondent, quantified the costs which Mr Grisenti considered reasonable costs (on a lump sum basis). The Grisenti Affidavit was relied upon before the Registrar in the hearing leading to the 2025 decision. The second and third affidavits were from Mr Simon Ellis, the solicitor for the fourth respondent. The second annexes correspondence between the fourth respondent and the applicant’s then legal representatives, Rose Legal Costing, and invoices and supporting disbursements that the fourth respondent provided to Rose Legal Costing. The third annexes the transcript of the hearing before the Registrar on 4 December 2024.

Extension of time sought to review the 2024 decision

Background facts: the 2024 decision

13    As explained, the 2018 orders provided, amongst other things, that “the applicant pay the costs of the First, Second, Third, Fourth and Fifth Respondents as assessed or agreed” and that the respondents “have liberty to apply for costs to be awarded on other than a party and party basis within 28 days from the date of this order”. The fourth respondent did not file a bill of costs in response to the 2018 orders. On 12 March 2024, the applicant filed an interlocutory application which relevantly sought the following orders:

1.    Pursuant to Rule 40.15 of the Federal Court Rules 2011, the Applicant applies to the taxing officer to certify the costs of the Fourth Respondent in accordance with the orders of Justice Kerr on 29 June 2018.

2.    Pursuant to Rule 40.15 of the Federal Court Rules 2011, the Applicant applies to the taxing officer to allow the Fourth Respondent’s [sic] a nominal or other sum by way of costs in accordance with the orders of Justice Kerr on 29 June 2018.

14    Rule 40.15(1) of the Rules provides that if a party entitled to costs does not file a bill within a reasonable time of being entitled to do so, any party who is liable to pay those costs and is prejudiced as a result, may apply to the taxing officer: (a) to certify the costs; or (b) to allow a nominal or other sum by way of costs.

15    The applicant’s interlocutory application was heard by a National Judicial Registrar of the Court. The Registrar determined that it would not be appropriate to allow a nominal sum. The Registrar determined that r 40.15 of the Rules was engaged and that it would be appropriate to fix costs in the amount of an “other sum” under r 40.15(1)(b). The Registrar stated that in fixing the “other sum”, the parties may be assisted by “the principles which have been developed for the purpose of a lump sum costs application, including as to the appropriate way to verify what the total quantum of costs are”. The Registrar made orders on 4 July 2024 setting a timetable for the exchange of evidence and submissions on the quantum of the “other sum”. At the foot of those orders was a note that explained the operation of s 35A(5) of the Federal Court Act and the 21-day time limit in r 3.11 of the Rules. The applicant filed material in accordance with those orders.

16    The first issue for determination is whether, consistent with the principles above, an extension of time should be granted for review of the 2024 decision.

Is there sufficient explanation for the delay?

17    This litigation has a long history. Part of that history includes a decision of Wheelahan J in which his Honour refused the applicant’s application (made following an appeal against the 2018 orders) for an extension of time within which to apply for a review of a Registrar’s assessment of the fifth respondent’s cost of the appeal heard by the Full Court: see Jadwan Pty Ltd v Rae & Partners (a firm) (No 6) [2021] FCA 542. The Registrar’s exercise of power there was by order made 25 March 2021. In his decision of 19 May 2021 Wheelahan J set out and explained that under r 3.11 the applicant (there the appellant) had 21 days within which to apply to the Court under s 35A(5) of the Federal Court Act for a review of the exercise of the Registrar’s power. Wheelahan J also observed that there, as here, the 21-day time limit was noted at the foot of the Registrar’s order.

18    Notwithstanding that history, in her affidavit, Ms Alexander says that the applicant was never advised to consider seeking a review of the 2024 decision and was never advised of the limitation period in which to seek a review of it, until a conference with its new solicitors and counsel which occurred on 17 October 2025. There does not appear to be any doubt that the applicant had access to legal advice throughout the entire period prior to and since the 2024 decision.

19    I will return to Ms Alexander’s explanation, however and in any event, at the hearing counsel for the applicant submitted that the reason for the delay for seeking review of the 2024 decision was that “there was no order to appeal” and that “there was nothing to seek review upon” because the only orders he said were made at that time were timetabling orders. The applicant said that it “would have been premature” to have lodged an application for review of the 2024 decision because the matter was part heard before the Registrar and the amount of costs had not yet been determined.

Was it open to the applicant to seek review of the 2024 decision?

20    It is necessary to consider whether it was open to the applicant to seek review of the 2024 decision.

21    In its interlocutory application to the Registrar the applicant sought that the Registrar fix the costs of the fourth respondent in a nominal sum of $100 or other sum: see [13] above. The Registrar’s reasons delivered ex tempore on 28 June 2024 ended as follows:

[The applicant]invited me to fix costs in the nominal sum of $100. In my view, in the circumstances of this case, that would not be an appropriate exercise of my discretion.

…

In all of those circumstances, in my view it would be plainly unjust for me to exercise my discretion to fix costs in a nominal sum of $100.

At the conclusion of the hearing, it was submitted that, alternatively, I ought “certify” [the fourth respondent’s] costs, or otherwise fix them in the sum of $220,000. As this was not the basis on which the parties’ material was prepared and the hearing had otherwise been conducted up until the point that that submission was made, I do not consider it would be fair for me to fix that sum today. As a matter of procedural fairness, I will invite further evidence and submissions from the parties on what that sum ought be.

For the avoidance of doubt, this is not to formally adopt a lump sum costs procedure of the kind set out in the rules. I propose to fix the “other sum” under r 40.15(1)(b).

That is not to say that the parties may not be assisted by the principles which have been developed for the purpose of a lump sum costs application, including as to the appropriate way to verify what the total quantum of costs are.

Accordingly, I have in mind that I will set a timetable for the exchange of further material. I will hear from the parties in respect of such a timetable.

(Emphasis added.)

22    On 4 July 2024, the Registrar relevantly made the following orders:

1.    Paragraph 1 of the applicant’s interlocutory application dated 12 March 2024 be dismissed.

2.    By 31 July 2024, the fourth respondent file and serve any affidavit material and submissions on which it intends to rely as the sum of costs to be fixed pursuant to r 40.15(1)(b) of the Federal Court Rules 2011 (Cth).

3.    By 28 August 2024, the applicant file and serve any affidavit material and submissions on which it intends to rely as to:

a.    the sum of the fourth respondent's costs to be fixed pursuant to r 40.15(1)(b) of the Rules;

b.    the quantum of any costs the applicant seeks in respect of the interlocutory application.

4.    By 11 September 2024, the fourth respondent file and serve any material in reply.

5.    Paragraph 2 of the interlocutory application be listed for further hearing at 10.15am on 19 September 2024.

…

23    When reviewing the exercise of a Registrar’s power under s 35A(5) of the Federal Court Act, the Court is reviewing the exercise of the power by the Registrar which means the order made by the Registrar under that power: Deputy Commissioner of Taxation v Commercial & General Law (SA) Pty Ltd [2011] FCA 1269; 198 FCR 417 at [99] (Lander J).

24    To the extent that orders made by the Court are attended by ambiguity, the Court may, when construing those orders, have regard to the reasons for judgment: see Lim v Comcare [2019] FCAFC 104; 165 ALD 217 at [40] (McKerracher, Markovic and Snaden JJ). Authority in this Court indicates that to have regard to the reasons is permissible “even if the order is apparently unambiguous”: Leviston v PQ Management Pty Ltd (No 3) [2023] FCA 986 at [19] (Derrington J) and the cases there cited.

25    As explained, in the second paragraph of the applicant’s interlocutory application before the Registrar, the applicant sought an order “pursuant to Rule 40.15” of the Rules that “a nominal or other sum” be allowed by way of costs of the fourth respondent. The Registrar’s reasons explained her refusal to order the nominal sum. Reading them in light of those reasons, by her orders numbered two to five made 4 July 2024, the Registrar made orders to enable her to determine only the quantum of the “other sum” that was “to be fixed pursuant to r 40.15(1)(b)”. The effect of orders one to five was that the Registrar refused to “certify the costs” under r 40.15(1)(a) and refused to “allow a nominal … sum” under r 40.15(1)(b). It was open to the applicant to seek review of those orders that had the effect of refusing the nominal sum sought by it.

26    I am fortified in that position by the authorities just explained that endorse the reading of orders together with the reasons. When doing that there can be no doubt that the Registrar’s orders had the effect of dismissing that part of the relief sought by the applicant that involved the fixing of the nominal sum of $100.

27    All of that is consistent with the advice Ms Alexander deposes to having received at the conference on 17 October 2025. She says counsel explained to the applicant “that it had essentially lost its opportunity to have its costs fixed in a nominal sum as a result of the first decision… [and] hence, a rehearing of the second decision could only be a review of the fixing of costs under the ‘other sum’ under rule 40.15(1)(b)”. The applicant still seeks to review that part of the Registrar’s decision that refused the nominal sum, and seeks in any review the allowing of a nominal sum.

28    For those reasons, I do not accept the applicant’s submission that in respect of the 2024 decision, “there was no order to appeal [review]”. A review could have been sought of the Registrar’s orders of 4 July 2024 insofar as they had the effect of dismissing the application for the allowing of a nominal sum. No such review was sought within the time limit prescribed by r 3.11 of the Rules. I return to the applicant’s explanation for the delay.

The explanation and its sufficiency

29    As explained at [18]–[19] above, the only explanation provided by Ms Alexander is that the applicant’s former legal representatives did not advise the applicant to consider seeking a review of the 2024 decision, or of any limitation period to seek such review. There was no detailed explanation of the advice sought by the applicant at the time, or any steps it sought to take to challenge the Registrar’s refusal to award the nominal sum, or any other circumstances at that time.

30    I do not consider that is a sufficient explanation. First, the material before me establishes that the applicant was represented by lawyers at all times during and after the exercise of the Registrar’s power on 28 June and 4 July 2024. There was no explanation of what was asked of the lawyers in June and July 2024 including whether advice was sought about review options at that time. Second, and relatedly, the applicant had previously sought an extension of time to review a decision of a Registrar of this Court in relation to the same litigation. That application was refused by the Court, after it explained the necessary time limits: see [17] above. Third, the note to the orders made on 4 July 2024 expressly set out the ability to seek review and the time limits that applied, again, in circumstances where the applicant was represented by lawyers.

31    For those reasons, and having determined that it was open to the applicant to seek a review of the refusal to allow a nominal sum, I do not consider the applicant’s explanation of the delay in respect of the 2024 decision to be sufficient. As identified above, the principles dealing with extensions identify that the explanation for the delay and the merits of the application are not wholly distinct.

Is there sufficient merit in the review application?

32    As explained, the assessment as to the merits of the application proceeds by reference to the relief sought if the extension is granted given that reviews of a Registrar’s exercise of power proceed de novo: Nikolic at [33].

Background

33    I repeat the background to the 2024 decision set out at [13]–[15] above. In the 2024 decision, the Registrar determined that r 40.15 was engaged and that it would be appropriate to fix costs in the amount of an “other sum”. The Registrar stated that in assessing costs she would not adopt a lump sum costs procedure but that the processes and principles that guide the Court in undertaking lump sum assessments may assist the Court in the proper exercise of its discretion to fix an “other sum” under r 40.15(1)(b).

34    Should time be extended, the applicant seeks the following orders:

Pursuant to subsection 35A(6) of the Federal Court Act, the Federal Court grant the applicant’s application for review and make the following orders:

a.    Allow a nominal sum for the fourth respondent’s costs pursuant to Rule 40.15 (1)(b) of the Federal Court Rules or

b.    Alternatively, allow an “other sum” for the fourth respondent’s costs of no more than $100,000 pursuant to Rule 40.15 (1) (b) of the Federal Court Rules or

c.    Alternatively, remit the determination of the amount of costs that should be allowed for the fourth respondent pursuant to Rule 40.15 (1) (b) of the Federal Court Rules to a taxing officer (other than National Judicial Registrar Edwards) for hearing and determination in accordance with the law.

35    At the hearing before me, counsel for the applicant confirmed that the relief sought at subpara (a) above was a nominal sum in the amount of $100.

The merit of the review application

36    The parties made the following submissions regarding the Registrar’s approach. Whilst my assessment of the merits of the application, were an extension of time to be granted, is to proceed de novo, it is relevant to refer to and consider these submissions in my assessment of the merits of any review. It is not necessary for me to reach a concluded view on the review but rather to assess “sufficient merit”. I do that by reference to the relief sought: see [34] above.

37    In respect of order 4(a), I am not satisfied that there is any merit in the application for an order to allow a nominal sum of $100 for the fourth respondent’s costs.

38    When asked to award a nominal sum the Registrar explained:

[The applicant] invited me to fix costs in the nominal sum of $100. In my view, in the circumstances of this case, that would not be an appropriate exercise of my discretion.

This is not a case where [the applicant] has not known that [the fourth respondent] intends to pursue its entitlement to costs, or there have been representations that the costs order would not be enforced. There is an extensive history of discussions between the parties, including, as I said earlier, between November 2020 and December 2023. So far as I understand the evidence, [the applicant] or its representatives have been broadly aware of the approximate quantum of the costs incurred, even if they have not had all of the detail of those costs, or have not been at liberty to share detailed invoices directly with their client. It may also be accepted that having a broad awareness of the approximate quantum of total costs is not the same as being aware of what the quantum is in a bill of costs that applies the Federal Court Scale to the costs.

The Court’s discretion must be exercised judicially having regard to the overarching principles of civil procedure and what is just in the particular circumstances of the case. [The fourth respondent] has been awarded its costs for its success in the first instance proceeding. I have the benefit of having access to the Court file, and having had an opportunity to review significant material on the Court’s file in respect of this proceeding, it is obvious enough to me that it was a long-running and complex piece of litigation involving multiple parties and multiple issues. Mr Ellis’ sworn evidence is that the total sum of [the fourth respondent’s] costs is approximately $1,155,000, comprising approximately $510,000 in professional fees and $645,000 in disbursements, which are predominantly counsel fees.

In all of those circumstances, in my view it would be plainly unjust for me to exercise my discretion to fix costs in a nominal sum of $100.

39    The Registrar’s conclusion was sound and appropriate for the reasons she gave. Whilst a review would proceed de novo, I do not consider, in all of the circumstances before me, that there is sufficient merit in an argument that nominal costs of $100 should be ordered.

40    The applicant submits that the primary judge’s 2018 orders “did not make an order that the Applicant pay the Fourth Respondent’s costs on a lump sum basis pursuant to rule 40.01…and he did not make an order that the Applicant pay the Fourth Respondent’s costs prior to the proceeding being transferred to the Federal Court”. It says that while the Registrar was delegated the power to assess the fourth respondent’s costs, she lacked the power to “effectively change the basis of the assessment to a lump sum assessment, and she provided no proper reason why that occurred”. The applicant refers to Natch v Stennson Pty Ltd (No 2) [2024] FCA 1498 which is said to support the submission that while the power of taxation is delegated to the Registrar of the Court, the power to determine the mode of assessment is not delegated. Accordingly, the applicant submits that the Registrar should have assessed the fourth respondent’s costs in accordance with r 40.12 of the Rules, which requires the assessment of costs to be conducted in accordance with Part 40 of the Rules and for the fourth respondent to file a bill of costs or be awarded a nominal sum. The applicant says that the fourth respondent should have filed a bill of costs following the Registrar’s orders of 4 July 2024, which provided that the fourth respondent would file affidavit material and submissions on which it intended to rely as the sum of costs to be fixed.

41    The applicant submits that if costs were assessed in accordance with r 40.12, the applicant would have had the benefit of the following rules:

(a)    the bill of costs would have included a copy of the receipt for each disbursement (r 40.18(b));

(b)    the bill of costs would have contained particulars of the work done, costs claimed and disbursements incurred (r 40.18(a));

(c)    the Registrar would have had the power to order the production of documents from the file of the fourth respondent’s solicitors, to issue subpoenas to counsel to determine whether their costs had been paid, or to order discovery, and the applicant could have called for the fourth respondent to produce specific documents (r 40.28); and

(d)    the Registrar would have been obligated to disallow costs that in the opinion of the taxing officer have been incurred or increased through: impropriety, unreasonableness, negligence, through overcaution, by agreeing special fees to counsel or special charges to witnesses or by other unnecessary expense (r 40.30).

42    The applicant says there was no reason for the Registrar to adopt the processes and principles of a lump sum assessment and that nothing in r 40.15 or the Rules says that the principles of a lump sum costs assessment should be used as a guide in fixing the “other sum” provided for by r 40.15. The applicant refers to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 where at [47] Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(footnotes omitted.)

43    Rule 40.15 of the Rules provides as follows:

40.15 Failure to file bill of costs

(1) If a party entitled to costs does not file a bill in accordance with this Division within a reasonable time of being entitled to do so, any party who is liable to pay those costs and is prejudiced as a result, may apply to the taxing officer:

(a) to certify the costs; or

(b) to allow a nominal or other sum by way of costs.

Note: Taxing officer is defined in the Dictionary.

(2) An application under subrule (1) must be accompanied by an affidavit stating the prejudice said to be suffered.

Note: Bill is defined in the Dictionary.

44    The applicant submits that the words in r 40.15 provide that the Court can allow a nominal or other sum, which means that the method of assessing these sums must allow for the possibility that a nominal sum could be awarded, which should be ordered if there was insufficient evidence provided by the fourth respondent to undertake a determination of its costs. The applicant further submits that if there was sufficient evidence provided, the assessment of costs should be limited to the essential costs incurred.

45    It is clear that the Registrar did not order the fourth respondent to file a bill of costs. It was open to the applicant to seek an order that a bill of costs be filed within a certain time, but it did not do so. I accept, as the fourth respondent submits, that the Registrar did not adopt a lump sum procedure, but rather used it as a guide and that this was a course open to the Registrar in order to fix the “other sum”. The Registrar explained that the “parties may … be assisted by the principles which have been developed for the purpose of a lump sum costs application”. That is not, as the applicant complains, to “effectively change the basis of the assessment to a lump sum assessment”; she used the principles as a guide. I do not consider that the applicant’s argument in this respect has sufficient merit.

46    I accept, as the fourth respondent submits, that having determined not to award a nominal sum, it was open to the Registrar to direct the parties’ attention to the principles of a lump sum assessment to assist the parties and her in the determination of the “other sum” which was to be made after further materials were filed. Rule 40.15 does not limit how the “other sum” is to be fixed.

47    Further, there is nothing in the text of r 40.15(1)(b) to support the applicant’s construction that if there is insufficient evidence of the other sum, the Registrar is obliged to award a nominal sum and if there was sufficient evidence, the Registrar is obliged to assess only essential costs. The applicant did not point to any context or purpose to support such a reading. I do not consider this argument to have sufficient merit.

48    Further, the fourth respondent relies upon those parts of the first affidavit of Mr Ellis explaining that the fourth respondent provided to Mr Grisenti and to the applicant’s then solicitors copies of all the invoices for the costs claimed, aside from costs for a number of small disbursements for things such as company searches. I accept, as the fourth respondent complains, that the applicant has not provided any material which explains that it has any concern that the counsel fees were not actually paid.

49    On the material before me there is insufficient merit in the application to review the 2024 decision. It was clear that the Registrar determined that r 40.15 was engaged. Rule 40.15(1)(b) provides that the taxing officer can allow “a nominal or other sum by way of costs” (emphasis added). The applicant’s submission that the principles of a lump sum costs assessment cannot be used to assist in the determination of the quantum of the “other sum” does not have sufficient merit.

Prejudice to the fourth respondent

50    As mentioned, the relevant prejudice to consider is that suffered by the party that would be responding to the prospective application, were an extension of time granted. The fourth respondent submits that the prejudice it would suffer should the extension of time in respect of the 2024 decision be granted, is that following the 2024 decision the parties proceeded on the basis indicated by the Registrar that the amount awarded would be an “other sum” guided by the principles of a lump sum costs order and that the parties spent “considerable time and money” in the process of putting on material to the effect indicated by the Registrar.

51    I consider that the fourth respondent would suffer some prejudice on that basis, should the extension of time be allowed. Nonetheless, given the circumstances in which that prejudice arises, partly from the fourth respondent not filing a bill of costs, I consider that this weighs only modestly against the grant of an extension.

Conclusion on 2024 decision

52    Weighing together the insufficient explanation for the delay in bringing the application, my assessment that the application for review has insufficient merit, and the modest prejudice the fourth respondent would suffer should the extension of time be allowed, the application for an extension of time to seek a review of the 2024 decision is dismissed.

Extension of time sought to review the 2025 decision

Background facts: the 2025 decision

53    The hearing on the quantum of the “other sum” was held on 4 December 2024 before the Registrar. In her reasons of 9 September 2025 the Registrar analysed the evidence of Mr Grisenti, who was cross-examined at the hearing of 4 December 2024, and the submissions made by the parties. The Registrar did not wholly accept the evidence of Mr Grisenti, who opined that it would be fair and reasonable to fix the fourth respondent’s costs in the sum of $890,476.19. The Registrar made reductions to the professional fees, counsel fees and disbursements and ordered that the applicant pay the fourth respondent’s costs fixed in the sum of $644,449.95.

54    The Registrar’s reasons for the 2025 decision included the following:

[109] In making a determination under r 40.15, like in a lump sum assessment, it is appropriate to apply a much broader brush to the assessment of costs than would be applied on a taxation.

[110] In my view the appropriate way to approach this exercise is to take, as the starting point, the evidence of the actual costs incurred and to adjust that figure to take account of the applicable scale, whether charges have been reasonably incurred, and the conduct of the proceeding.

[111] As I have said earlier, it is appropriate to discount the amount that is awarded to take into account that the sum is being determined without the detailed scrutiny typically afforded by a formal costs assessment. To moderate against any prejudice that arises by this process it is appropriate to adopt a conservative approach in reaching a figure that is fair.

55    It is necessary to determine whether, consistent with the principles above, an extension of time should be granted for review of the 2025 decision.

Is there sufficient explanation for the delay?

56    Ms Alexander deposes that on or around 24 September 2025, the applicant asked its then solicitors to advise it on the time limit for filing an application for review of the 2025 decision. She says that the solicitors advised the applicant that it had 28 days from the date of the 2025 decision to file its application.

57    Ms Alexander deposes to a period of back and forth between the applicant and its solicitors during which the applicant provided various instructions and followed up on instructing counsel. Ms Alexander says that on 7 October 2025, the applicant’s solicitors advised the applicant that counsel had informed them that the period of time within which the applicant had to file its application for review was 21 days and not 28 days and that the applicant should not rush to file its application because it was already out of time. Ms Alexander then deposes to a further period of back and forth between the applicant and its then solicitors. Ms Alexander deposes that on or around 16 October 2025, the applicant made contact with its current solicitor. The application for review was filed on 24 October 2025.

58    The applicant submits that its delay in seeking review of the 2025 decision was short. At the hearing before me, the applicant submitted that during the period of back and forth between the applicant and its then solicitors, the applicant was “not simply doing nothing in the meantime”.

59    The fourth respondent submits that in circumstances where the applicant had legal representation throughout the relevant period, the explanation for the delay is insufficient.

60    While I accept that the delay is short, I do not consider there to be a sufficient explanation. First, the material before me establishes that the applicant was represented by lawyers at all times. The evidence does not satisfy me that the “back and forth” between the applicant and its solicitors was carried out with the necessary urgency, even taking account of the erroneous advice about the time limit for review being 28 days. Second, as explained above the applicant had previously in aspects of the same litigation sought an extension of time to review a decision of a Registrar of this Court and as set out at [17] above, the outcome of that application explained the time limits. Third, the note to the sealed copy of the orders made on 9 September 2025 expressly set out the ability to seek review and the 21-day time limit that applied pursuant to r 3.11. In those circumstances, where the applicant was represented by lawyers and was aware at least by 7 October 2025 that the application had not been filed despite expiry of the 21-day time limit on 30 September 2025, I do not consider the applicant’s explanation of the delay before filing the application for review on 24 October 2025 to be sufficient. I consider that lack of sufficient explanation together with the question of sufficient merit to which I now turn.

Is there sufficient merit in the review application?

61    As explained, the Registrar ordered that the applicant pay the fourth respondent’s costs fixed in the sum of $644,449.95 following a review of the evidence of Mr Grisenti.

62    As set out at [10] above, the question of whether the application has sufficient merit proceeds by reference to the relief sought if the extension is granted. Paragraph four of the applicant’s interlocutory application seeks the following orders:

a)    Allow a nominal sum for the fourth respondent’s costs pursuant to Rule 40.15 (1)(b) of the Federal Court Rules or

b)    Alternatively, allow an “other sum” for the fourth respondent’s costs of no more than $100,000 pursuant to Rule 40.15 (1) (b) of the Federal Court Rules or

c)    Alternatively, remit the determination of the amount of costs that should be allowed for the fourth respondent pursuant to Rule 40.15 (1) (b) of the Federal Court Rules to a taxing officer (other than National Judicial Registrar Edwards) for hearing and determination in accordance with the law.

63    The order sought by 4(a) of the interlocutory application has no relevance to the 2025 decision, which only fixed the quantum of the “other sum” of the fourth respondent’s costs. The merit of the application to review the 2024 decision, by which the Registrar determined not to allow a nominal sum, is addressed above at [37]–[39].

64    For the purpose of the application to review the 2025 decision, I must consider whether there is sufficient merit in the applicant’s proposed order which seeks that the Court allow an “other sum” for the fourth respondent’s costs of no more than $100,000 pursuant to r 40.15(1)(b). During the hearing before me, the applicant sought to amend the relief sought at para 4(b) to between $270,000 and $350,000 in accordance with the figure proposed in the affidavit of Mr Thompson. I did not understand the fourth respondent to object to that amendment.

65    Insofar as the applicant agitates its complaints regarding the Registrar’s adoption of the processes and principles of a lump sum assessment in assessing the “other sum” in respect of the 2025 decision, for the reasons set out at [45]–[49] above, I am not satisfied that complaint has sufficient merit.

66    The applicant submits that the Grisenti Affidavit, by reference to which the Registrar fixed the quantum of costs, “was deeply flawed”. The applicant submits that the Registrar should not have allowed costs that were incurred unnecessarily between the respondents and which represented a duplication of work between them when it was accepted that the respondents worked together and were entitled to the costs of working together. The applicant submits that the costs in relation to the appeal before the Full Court and the application for special leave should not have been included in the assessment.

67    In respect of counsel fees, the Grisenti Affidavit sets out the fees of Mr Gunson SC at $381,619.32 before any adjustment, and then at $335,000 after adjusting them to what Mr Grisenti considered reasonable on an inter partes basis. The applicant complains that, rather, the total amount of Mr Gunson SC’s fees which should have been claimed (before any adjustment) is $348,450. The applicant arrived at that figure by subtracting, from the $432,300 total of Mr Gunson SC’s fee invoices attached to the first affidavit of Mr Ellis, the fees for the appeal before the Full Court and the special leave application which it says total $83,850 and which it says should be excluded. The applicant says that if the discounts applied by the Registrar were applied to the amount of $348,450 which it proposed, the fees of Mr Gunson SC that should be allowed would have been $226,492.51. I note that this calculation proposed by the applicant appears erroneous: contrary to footnote 9 of the applicant’s reply submissions, it is apparent that the Registrar did not simply apply a “65% discount” to counsel fees, but rather reduced total counsel fees by 30% and then reduced the resulting sum by a further 5%: at [152] and [153]. Applying that method of discounting, in two separate steps, to the applicant’s proposed amount of $348,450 for Mr Gunson SC’s fees would result in $231,719.25. The applicant says further that there was also an overreliance on senior counsel when junior counsel should have been briefed earlier and a lot of the work could have been undertaken by the solicitors.

68    In respect of professional fees, the applicant says that the Grisenti Affidavit calculates the professional fees of Lander & Rogers as being $525,659 but the fee invoices exhibited in the first affidavit of Mr Ellis for the professional fees of Lander & Rogers add up to the sum of $508,732, being a discrepancy of around $16,000.

69    In respect of transcript fees, the applicant says that the Grisenti Affidavit sets out that the transcript fees totalled $35,531.75 but that the invoices in the first affidavit of Mr Ellis show that the transcript fees were $29,950.20. The applicant concedes that the actual transcript invoices themselves were not annexed to Mr Ellis’s affidavit.

70    The applicant initially raised a complaint by reference to r 40.05 of the Rules, which provides that where a proceeding is transferred to this Court, a party may apply to the Court for an order that the costs of the proceeding in another court be taxed in accordance with the Rules or awarded as a lump sum in lieu of taxation. The applicant said that because the fourth respondent did not make an application to the primary judge under this rule for the costs incurred in the Supreme Court of Tasmania to be taxed in this Court, no amount of those costs should be allowed at all. Further, the applicant said in reply that in respect of fee scales, the assessment of the fees of counsel and Lander & Rogers (prior to the transfer to the Federal Court) was not based upon the Tasmanian Supreme Court Rules 2000 which it says were applicable at the time that the fees were incurred.

71    The applicant did not make detailed submissions in relation to the merits of substituting the figure proposed by Mr Thompson other than to submit that because the fourth respondent’s solicitors’ file was, for some period, in hard copy, Mr Grisenti’s assessment of the file was incomplete. The applicant could not say how long the file was kept in hard copy and accordingly could not say the extent to which it submits that the absence of the hard copy file impacted on Mr Grisenti’s assessment, other than that if a taxation were to occur, the hard copy file would be examined in full.

72    The fourth respondent submits that challenges to the Grisenti Affidavit were made at the hearing before the Registrar and that there is nothing unusual in the Registrar relying upon the evidence of an experienced costs lawyer such as Mr Grisenti. The fourth respondent says further that the Registrar did not wholly accept Mr Grisenti’s evidence, but that she used his evidence alongside the applicant’s submissions to inform her determination.

73    As to the applicant’s submission regarding duplication of costs, the fourth respondent submits that this argument was rejected by the Registrar and further that this submission amounts to an impermissible challenge to the orders of Kerr J who, as the Registrar said, did not order that costs be apportioned between the respondents but rather awarded the fourth respondent its costs.

74    As to the costs of the appeal and application for special leave, the fourth respondent says that those costs were not included in the sum of $644,449.95 arrived at by the Registrar. The fourth respondent submits that disbursements were provided to Mr Grisenti and the applicant’s former solicitors, with the disbursements including invoices from counsel which postdated the hearing before Kerr J. The fourth respondent submits that it is clear from the face of those invoices what they relate to and further submits that Mr Grisenti undertook the exercise of determining which invoices relate to the original proceeding. The fourth respondent refers to paragraph [36] of the Grisenti Affidavit, where for example, no counsel fees incurred after 2018 were included by Mr Grisenti.

75    As to counsel fees, the fourth respondent submits that Mr Grisenti concluded that Mr Gunson SC’s fees were in the sum of $381,619.32 (where his invoices totalled $432,300) which reflects the fact that Mr Grisenti undertook an assessment of which invoices were the subject of the costs order. The fourth respondent says that the applicant could have cross-examined Mr Grisenti at the hearing before the Registrar in relation to this point.

76    As to the issue regarding whether pre-transfer costs are payable and if so which fee scale should apply to them, the fourth respondent at the hearing placed reliance on the Registrar’s reasons at paragraphs [79]–[85], and stated that any submission that those costs are not payable is effectively an attack on the primary judge’s 2018 orders which made no distinction between the costs pre- and post-transfer. In those paras the Registrar addressed both the issue of whether costs of the proceeding prior to transfer are allowable, and the issue of the applicable scale, saying:

[79] The applicant submitted that the Tasmanian Scale ought to apply to the costs incurred by the fourth respondent prior to the proceeding being transferred to the Federal Court.

[80] The court has discretion in respect of the costs of a proceeding transferred from another court, including to order that such costs be assessed in accordance with the requirements of the originating jurisdiction: see Sheikholeslami v Tolcher (No 2) [2012] FCA 199 (Yates J); Charan v Secretary, Department of Human Services [2018] FCA 1942 (Flick J); McDonald v Parnell Laboratories (Aust) (No2) [2007] FCA 2086 (Buchanan J); Melbourne City Investments Pty Ltd v Treasury Wine Estate Ltd [2019] FCA 804 (Foster J).

[81] However, the exercise of that discretion rests with the judge who makes the costs order.

[82] The order of Kerr J made on 29 June 2018 provides that in the absence of agreement the costs be assessed. The order did not provide for any portion of the costs to be assessed in accordance with the Tasmanian Scale.

[83] Rule 40.12 of the Rules provides that “if an order is made in favour of a party for payment of the party’s costs, the costs must be taxed in accordance with this part”. Rule 40.29 provides that a taxing officer is to allow costs for work done “(a) before 1 August 2011, in accordance with schedule 2 to the Federal Court Rules for the relevant period mentioned in that schedule; and (b) on or after 1 August 2011, in accordance 20 [sic] with schedule 3, for the relevant period, if any, mentioned in that schedule”.

[84] Accordingly, the fourth respondent’s costs of this proceeding are to be assessed pursuant to the Federal Court’s Scale.

[85] For the same reasons, contrary to the applicant’s submissions, I do not consider that the rules pertaining to counsel fees as they are set out in the Supreme Court Rules 2000 (Tas) (including r 863(1) and 863(2)(a)) are relevant to this determination.

77    Insofar as the applicant still presses the claim about pre-transfer costs of the fourth respondent not being payable, it is clear from the way the parties approached the costs assessment that the fourth respondent sought its pre-transfer costs before the Registrar even if a formal application under r 40.05 was not made. There was no challenge before the Registrar to the fourth respondent’s ability to seek and recover its costs from the proceedings in the Supreme Court of Tasmania. It is clear that the Registrar proceeded on that basis and explained the Court’s power to award those costs: see [80] of the Registrar’s reasons and the cases (themselves referencing r 40.05 or its predecessor) to which she refers. The Registrar had a sound and proper basis to do so. Whilst a review would proceed de novo, I do not consider, in all of the circumstances before me, that there is sufficient merit in an argument to now deny those pre-transfer costs.

78    As to professional fees, the fourth respondent submits that Mr Grisenti based his actual assessment on a figure of $514,287, which he combined with the Page Seager invoices and assessed at an adjusted amount of $402,000 which is then further adjusted by applying a loading of 15% for skill, care and attention. The fourth respondent says that, assuming there was a calculation error by Mr Grisenti of around $16,000, there were such reductions made generally by the Registrar that the error is de minimis.

79    As to transcript fees, the fourth respondent refers to the Registrar’s reasons, where at [158] she determined to “apply an additional overall discount of 15% to the disbursements to account for any unnecessary, disproportionate or otherwise unrecoverable costs”. The fourth respondent says that the 15% discount to disbursements applied by the Registrar would accommodate any error in Mr Grisenti’s calculation of the transcript fees. The fourth respondent says further that if the 15% discount did not allow for the error, any difference would be de minimis.

80    It is not necessary for me to determine the dispute between the parties as to the precise quantification of costs, but rather to assess the sufficient merit of a review for the relief sought. Relevantly, that is a review seeking a finding to allow an “other sum” for the fourth respondent’s costs of no more than $270,000–$350,000 as proposed in Mr Thompson’s affidavit in place of the $644,449.95 awarded by the Registrar. While that review proceeds de novo, I have considered the approach of the Registrar, measured against the submissions the parties make about the appropriateness of that approach. In my assessment of that approach, it was reasonable and appropriate in all of the circumstances before the Registrar. The Registrar accepted Mr Grisenti’s evidence as to the fees and disbursements actually incurred by the fourth respondent ([113]) and applied discounts to the professional fees, counsel fees and disbursements. I am not satisfied that the applicant’s criticisms of the Registrar’s approach, and of Mr Grisenti’s evidence, have sufficient merit to justify the relief sought by the applicant in a review of the Registrar’s exercise of power so as to allow an extension of time for the review to occur. That is, I am not satisfied that there is sufficient merit in the application for review to allow an “other sum” for the fourth respondent’s costs of no more $270,000–$350,000 as proposed in Mr Thompson’s affidavit in place of the $644,449.95 awarded by the Registrar.

Prejudice to the fourth respondent

81    The fourth respondent submits that it would suffer some prejudice should the extension of time in respect of the 2025 decision be granted because of the time that has elapsed since the transfer of the proceeding to the Federal Court in 2016 and the making of the costs order in 2018.

82    I consider that the fourth respondent would suffer limited prejudice should the extension of time be allowed but, for the same reason discussed in relation to the 2024 decision, that weighs only slightly against the grant of an extension.

Conclusion on 2025 decision

83    Weighing the insufficient explanation for the delay in bringing the application (whilst taking into account that the delay was short), with my assessment that the application for review of the 2025 decision lacks sufficient merit, and the slight prejudice the fourth respondent would suffer should the extension of time be allowed, the application for an extension of time to review the 2025 decision is dismissed.

Disposition

84    For all of the reasons set out above, the applicant’s interlocutory application is dismissed. The applicant should pay the fourth respondent’s costs of that application.

Associate:

Dated:    14 October 2026

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