Costs Order Against Legal Representative - National Redress Scheme

Original Word Document (121.3 KB) Federal Court of Australia

JVU25 v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2026] FCA 145

| File number: | WAD 97 of 2025 |
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| Judgment of: | VANDONGEN J |
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| Date of judgment: | 2 December 2025 |
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| Date of publication of reasons: | 24 February 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE - costs - whether appropriate to order that the legal representative personally bear costs under s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth) |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43

Judiciary Act 1903 (Cth) s 39B

National Redress Scheme f or Institutional Child Sexual Abuse Act 2018 (Cth) ss 3, 8

Federal Court Rules 2011 (Cth) r 28.01 |
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| Cases cited: | Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 3) [2021] FCA 1420

Latoudis v Casey (1990) 170 CLR 534

Mitry Lawyers v Barnden [2014] FCA 918

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456

Yu v Cao [2015] NSWCA 276; (2015) 91 NSWLR 190 |
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| Division: | General Division |
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| Registry: | Western Australia |
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| National Practice Area: | Other Federal Jurisdiction |
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| Number of paragraphs: | 102 |
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| Date of hearing: | Determined on the papers |
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| Counsel for the Applicant: | Mr C Chidiac |
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| Solicitor for the Applicant: | Adventure Legal |
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| Counsel for the Respondent: | Ms S Fitzgerald |
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| Solicitor for the Respondent: | Sparke Helmore Lawyers |
ORDERS

| | | WAD 97 of 2025 |
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| BETWEEN: | JVU25

Applicant | |
| AND: | OPERATOR, NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE

Respondent | |

| order made by: | VANDONGEN J |
| DATE OF ORDER: | 2 DECEMBER 202 5 |
THE COURT ORDERS THAT:

1. Mr Christopher Chidiac is to personally pay the respondent's legal costs of the case management hearing on 20 November 2025.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1 The respondent is the Operator of the National Redress Scheme for Institutional Child Sexual Abuse (Redress Scheme). The Redress Scheme is established by s 8 of the National Redress Scheme f or Institutional Child Sexual Abuse Act 2018 (Cth). The main objects of that Act are (a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and (b) to provide justice for the survivors of that abuse: s 3(1).

2 The applicant claims that he was the victim of historical physical and sexual abuse while he was in a South Australian institution. The applicant says that in 2019 he applied for redress under the Redress Scheme, and that he subsequently received a sum of money to acknowledge the wrongs he experienced as a child. However, the applicant claims that when he accepted the respondent's offer to pay him that money, he did not understand that he thereby released and discharged the State of South Australia from civil liability.

3 Although the applicant has not articulated the basis on which he asserts that the respondent owed him a relevant duty of care, he claims that by reason of the respondent's negligence, he suffered damage as he lost the opportunity to make a damages claim against the State of South Australia in respect of the abuse that he suffered as a child.

4 This matter has had an unfortunate history. There have been several case management hearings since the matter was first allocated to my docket in April 2025. A major focus of those case management hearings has been on the applicant's statement of claim and the related question of whether this Court has jurisdiction with respect to the matter.

5 One such case management hearing was scheduled to take place on 20 November 2025 (the 20 November CMH). For reasons that I will shortly explain that hearing had to be adjourned. Because of the need to adjourn the case management hearing, I made an order on 2 December 2025 that the applicant's solicitor, Mr Christopher Chidiac of Adventure Legal, was to pay the respondent's legal costs of that case management hearing (costs order).

6 The parties were directed to indicate whether they required written reasons for the costs order by 3 December 2025. On 11 December 2025, Mr Chidiac requested written reasons.

7 These are my reasons.

8 I will commence with the relevant principles.

The relevant principles

9 The relevant principles to be applied in determining whether an order should be made requiring a lawyer to personally pay costs were summarised by O'Callaghan J in Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 3) [2021] FCA 1420 in the following way at [23] to [27]:

The parties to a civil proceeding in this court are required to conduct the proceeding in a way consistent with the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). This requires parties to litigation to conduct themselves in such a way as to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. See s 37N(1) of the FCA Act, which imposes a duty on parties to act consistently with this purpose.

By s 37N(2) of the FCA Act, a party's lawyer must, in the conduct of civil proceedings before the court, take account of the overarching purpose and assist the party to comply with their s 37N(1) duty. Section 37N(4) requires that, in exercising the discretion to award costs in the civil proceeding, the court must take account of any failure by the party, or the party's lawyer, to comply with the duties imposed by ss 37N(1) and (2).

Section 43(3)(f) of the FCA Act is an express source of power in the court to order a party's lawyer to bear the costs personally.

The principles which guide the court when considering to exercise the discretion under s 43(3)(f) of the FCA Act have been discussed in a number of cases.

The power to award costs against a party's lawyer should be exercised with considerable caution and only in clear cases. As Wigney J said in Mitry Lawyers v Barnden [2014] FCA 918 at [42]:

1.    Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.

2.    Something which involves 'unreasonable conduct' is required.

3.    What constitutes unreasonable conduct will depend on the circumstances of the particular case.

4.    The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.

5.    The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.

6.    An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.

7.    The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.

10 As to the relevance of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act), it is also informative to record what was said by Lee J about those provisions in the context of personal costs orders against lawyers in Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456 at [25]:

It is often said that the discretion as to costs in s 43 is 'wholly unfettered'. In a practical sense this remains true, but … this is perhaps now an over simplification. Since the introduction of Part VB of the Act, s 37N(4) has provided that in exercising the discretion to award costs in a civil proceeding, the Court must take account of any failure of a party to conduct the proceeding in a way consistent with the overarching purpose to facilitate resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible. Similarly, s 37M provides that all civil practice and procedure provisions must be interpreted and applied, and any power conferred must be exercised or carried out, in a way that best promotes the overarching purpose.

(original emphasis)

11 Further relevant observations about the power to make a costs order against a lawyer include:

(1) A lawyer against whom a claim for costs is made must have full and sufficient notice of the complaint and full and sufficient opportunity to answer it: Mitry Lawyers v Barnden [2014] FCA 918 at [43].

(2) Despite the focus on 'unreasonable conduct' in the context of non-party costs orders, orders for costs are compensatory, not punitive: Young at [27]; citing Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ), 563 (Toohey J), 567 (McHugh J).

(3) Although personal costs orders against lawyers have been described as 'exceptional', in a passage in Yu v Cao [2015] NSWCA 276; (2015) 91 NSWLR 190, that was also referred to in Young, McColl JA observed at 139:

'[E]xceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense … [t]he ultimate question [being] whether in all the circumstances it is just to make the order.' The power to order non-party costs 'is inevitably to some extent a fact-specific jurisdiction and … there will often be a number of different considerations in play, some militating in favour of an order, some against. '

(footnotes omitted)

12 Having set out the relevant principles, it is then necessary to provide some background to my decision to order that Mr Chidiac personally pay the respondent's costs of the 20 November CMH. In the circumstances, it is necessary to provide a relatively detailed summary of the relevant background. However, it must be understood that the purpose of this summary is to place the 20 November CMH in its proper context. The costs order was not made to punish Mr Chidiac for any of the conduct that is referred to in the following summary, but to ensure that the respondent is compensated for the legal costs that were wasted by the need for its legal representatives to prepare for and to then appear at the 20 November CMH, and to further ensure that the applicant is not himself liable to pay those costs.

The relevant background

13 The applicant commenced these proceedings on 2 April 2025. The originating application and the accompanying statement of claim were both signed by Mr Chidiac.

14 The matter was allocated to my docket in April 2025 and, after a delay in serving the originating application and statement of claim on the respondent, the matter was listed for a first case management hearing before me on 16 June 2025.

15 At the first case management hearing Mr Chidiac confirmed that the applicant's claim was a common law negligence claim. When Mr Chidiac was asked whether he had given any thought to whether the Court had jurisdiction to determine the matter, it became clear that he had not given that issue any consideration. To be fair to Mr Chidiac, it appeared that the issue of whether the Court had jurisdiction in respect of the matter had also not been considered to any great extent by the respondent.

16 Mr Chidiac proposed that he be allowed some time to 'get instructions from counsel' before the next case management hearing 'to confirm that it's a matter suitable to be heard under federal jurisdiction or if it's better heard under state jurisdiction'. However, while the time sought by Mr Chidiac was granted, orders were also made that the parties file written submissions in relation to the issue of jurisdiction.

17 Unfortunately, Mr Chidiac did not file any written submissions in accordance with the Court's orders. Two days after the applicant's submissions were due to be filed, my associate wrote to Mr Chidiac, noting that the Court's order had not been complied with and asking for an explanation for that non-compliance. No response to this email was received. It was only after the parties were advised a short while later that given the applicant's failure to file any written submissions, the Court was minded to list the matter for a further case management hearing, that Mr Chidiac then responded to my associate and provided a copy of the applicant's written submissions.

18 After the respondent filed its written submissions, the matter was listed for a further case management hearing on 31 July 2025.

19 Based on their respective written submissions, the parties appeared to agree that the Court had jurisdiction in respect of the matter under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), on the basis that it was a matter arising under a law made by the Parliament. However, as I wished to clarify aspects of the submissions, the case management hearing proceeded on 31 July 2025 as listed.

20 At the case management hearing on 31 July 2025, I asked Mr Chidiac to explain the nature and scope of the duty of care the applicant claimed was owed by the respondent, with a view to understanding the precise basis on which it was said that the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act. In my view, this was an important issue having regard to what was said by the Full Court in Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [18], about when a 'matter' will 'arise under' a law of the Parliament for the purposes of that provision:

A matter will 'arise under' a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation - that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point. There is a difference, however, between a matter 'arising under' a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction).

(citations omitted)

21 As Mr Chidiac accepted, the duty of care on which the applicant's case relies was not pleaded in the statement of claim. This, he conceded, was 'a bit of an oversight on [his] part'. He was right to make that concession. In circumstances in which the applicant is required by s 37N(1) of the FCA Act to conduct these proceedings in a way that is consistent with the overarching purpose, and where he appears to assert that the respondent owed him a novel duty of care, it is obviously important to ensure that he exposes the precise basis on which it is alleged that this duty is based on a Commonwealth statute at an early stage in the proceedings.

22 Mr Chidiac explained that if he were to summarise in a single paragraph the relevant duty of care owed by the respondent, it is 'the duty to properly explain the terms of the acceptance document [containing the offer of payment] that the applicant signed prior to the applicant executing it'. However, it quickly became apparent that Mr Chidiac had not given any real thought to why a controversy about damage alleged to have been caused to the applicant, in the form of a lost opportunity to pursue a claim in negligence against the State of South Australia as a consequence of a breach of such a duty, would be a 'matter' within s 39B(1A)(c) of the Judiciary Act. In that context, it appeared as though Mr Chidiac had formed the view that an allegation of negligence on the part of a Commonwealth statutory body would be, in and of itself, a sufficient basis to attract the jurisdiction of the Federal Court. At the case management hearing on 31 July 2025, Mr Chidiac said the following:

So the way I've - the way I've looked at the matter, your Honour, I haven't - I've looked at the [National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth)] specifically as a piece of Commonwealth legislation. And because the - the cause of action arises out of - for negligence arises out - in relation to this Commonwealth legislation, that's why I saw it fit to have the matter heard in the federal - federal jurisdiction, as opposed to the - as opposed to state jurisdiction.

23 When Mr Chidiac was asked whether he had engaged counsel to assist him with this matter, he said that he had 'spoken to counsel on the substantive issues raised' but that he had not briefed counsel on the issue of the Court's jurisdiction. He nevertheless agreed that the jurisdictional issue raised by the Court was a 'fairly fundamental' issue. A suggestion was then made to Mr Chidiac that he obtain the assistance of counsel to deal with the issues raised during the case management hearing. The Court also indicated to Mr Chidiac that, subject to hearing from counsel for the respondent, it was minded not to make any orders concerning the issue of the Court's jurisdiction but to adjourn the case management hearing to give the parties the opportunity to confer, including to confer about reformulating the statement of claim so that the specific duty of care on which the applicant relied was made clear.

24 Counsel for the respondent then informed the Court that it approaches litigation as a model litigant, particularly in circumstances in which the litigation concerns victims of child sexual abuse. Counsel indicated that the respondent had therefore approached this matter by adopting a 'generous' view of whether the matter is one that arises under a law of the Parliament, for the purposes of s 39B(1A)(c) of the Judiciary Act. The following exchange with counsel conveniently summarises the responsible approach taken on behalf of the respondent:

HIS HONOUR: So I read your submissions as there is possibly jurisdiction, not necessarily jurisdiction. And it may depend - I'm putting words in your mouth - you can disagree - - -

MS FITZGERALD: Yes.

HIS HONOUR: - - - obviously, but it may depend on the way in which the duty of care relied upon is formulated.

MS FITZGERALD: That is, with utmost respect, absolutely the point that is made. And if - if my learned friend had taken the opportunity to, perhaps, explain that more fully today, there might have been something for your Honour to decide upon, but that obviously hasn't happened.

HIS HONOUR: Well, I don't want to put Mr Chidiac in a final position to formulate that duty of care, particularly when he wants to take the opportunity to take the assistance of counsel. And he may - and I take it that you, and your client, would be more than happy to engage in some conferral process with Mr Chidiac, and any counsel that he engages, with a view to fleshing out these issues and dealing with them in a less formal way.

MS FITZGERALD: Yes, that's absolutely the case. And whether that's between Mr Chidiac and my instructor, or with myself, I might ask that that question be left open just because of my availability over the next little bit. But certainly, with respondents, legal advisers would be - welcome that approach.

25 It was in that context that the following exchange then took place:

HIS HONOUR: All right. Well, I won't make any orders requiring that to occur. What I will do is, I will - in a moment, when we've dealt with the 37AF issue, I will adjourn the case management hearing to a date to be fixed, which I will fix with the expectation that that conferral process will take place during that period of time. Would that be suitable to you?

MS FITZGERALD: Thank you. Certainly to me, your Honour. Thank you.

HIS HONOUR: All right. And Mr Chidiac, that would be suitable to you, no doubt?

MR CHIDIAC: Yes, definitely, your Honour.

HIS HONOUR: And I'm thinking about adjourning the case management hearing for a period of about four weeks. Would that give you sufficient time to get advice from counsel, and to engage in a meaningful conferral process?

MR CHIDIAC: Certainly, yes. Yes, your Honour, four weeks is sufficient.

HIS HONOUR: And you, Ms Fitzgerald, as well?

MS FITZGERALD: Your Honour, we can certainly confer in that time. There are, obviously, no obligations on us to produce anything, so that won't - that will be sufficient.

26 After the Court then dealt with other unrelated issues, the case management hearing was adjourned to 28 August 2025.

27 On 27 August 2025, my associate wrote to the parties, noting that no consent memorandum, or competing minutes, of proposed orders had been received, as required by chambers, in advance of the case management hearing listed to take place the following day. When there was no response, my associate again wrote to the parties enquiring whether any minutes of proposed orders would be provided. The solicitors acting for the respondent then advised my associate that they had sent draft consent orders to the applicant and anticipated they would file a memorandum of consent orders shortly. Mr Chidiac later emailed my associate attaching a memorandum of consent orders seeking that the hearing be vacated and relisted no earlier than 25 September 2025. Subsequently, the solicitors for the respondent emailed and explained that they had been informed that the applicant wished to discontinue these proceedings and that some further time would be required to allow the parties to give effect to that course. On that basis, the case management hearing listed for 28 August 2025 was vacated.

28 The Court received no further communication from either party until, on 22 September 2025, my associate wrote to the parties seeking an update as to the future progress of the matter. The following day, Mr Chidiac sent the following email to my associate:

Dear Associate,

As you are aware, the Applicant has previously indicated that they might be discontinuing the application due to a jurisdictional issue raised by His Honour at an earlier Case Management Hearing. The reason for the discontinuance would be to facilitate a quicker resolution of the matter with a court under state jurisdiction, rather than have the proceedings unnecessarily delayed due to the issue of jurisdiction under Federal Court.

However, since this time, the Respondent's solicitors have indicated that they will be seeking costs for this discontinuance. This is despite their own submissions dated 4 July 2025 being in support of the Federal Court having jurisdiction to hear the matter.

So that we are not having to have a costs dispute this early in the proceedings and have the issue further agitated, we would like to know whether His Honour will allow the matter to proceed normally and have the issue of jurisdiction addressed at the final hearing, rather than at an interlocutory hearing.

His Honour did mention at the last interlocutory hearing on 31 July 2025 that they would like for Counsel for the Applicant to attend at the next listing to support the issue of jurisdiction. However, since this time, Counsel for the Applicant has indicated that they would be unable to assist with the matter, which has meant we would need time to find alternate Counsel to assist for these proceedings.

In order to prevent further incurring of costs by both parties, we believe it might be reasonable for the issue of jurisdiction to be dealt with at the final hearing, noting that there may also be a chance that the proceedings may be resolved between the parties before the final hearing. By this stage, we would have alternate Counsel found and briefed to address all of the issues raised about the claim, and not just due to the jurisdiction issue that was identified by His Honour.

If you could please let us know of the Court's response to the above request at the earliest convenience, it would be much appreciated.

Kind regards

29 Subsequently, and in response to an enquiry from my associate seeking Mr Chidiac's advice about how long it would take for him to brief alternative counsel, he advised that he required 'up to 2 months'. However, at my direction my associate wrote to the parties and advised Mr Chidiac that he would be allowed a period of two weeks to find alternative counsel and that the matter would otherwise be listed for a further case management hearing on 6 October 2025. My associate also informed the parties that the Court expected to be addressed about the future conduct of the matter.

30 The case management hearing listed on 6 October 2025 was subsequently adjourned by consent because counsel for the respondent advised in advance of that hearing that she was unavailable to appear on that date. A further case management hearing was then listed on 13 October 2025.

31 At the case management hearing on 13 October 2025 Mr Chidiac was asked to provide the Court with an update. Mr Chidiac appeared to understand that the Court would have been by then entitled to expect that he would have spoken to counsel about the issue of jurisdiction. It may be noted that over two months had elapsed since the last case management hearing. Mr Chidiac said that although he had spoken to counsel who he had 'originally briefed', that counsel could not provide any further assistance. According to Mr Chidiac, he had thought about discontinuing the proceedings but had reconsidered taking that step after the lawyers acting for the respondent raised the potential for costs orders being made. Mr Chidiac then explained that he sent an email to my associate on 23 September 2025. I have set out the contents of that email earlier in these reasons at [28].

32 Mr Chidiac also acknowledged that the Court had given him time to find alternative counsel, and said that he had in fact spoken to other counsel. The following exchange then took place:

HIS HONOUR: So have you engaged counsel?

MR CHIDIAC: Not formally. I've just spoken over the phone with different ones who might be able to assist, yes, but I haven't signed any cost agreements yet.

HIS HONOUR: Well, you originally asked on the 23rd for two months to find alternative counsel, and you were told that that was too long, and you were given a much shorter period of time; I think it was two weeks. You've now been - - -

MR CHIDIAC: Correct. Yes. So - - -

HIS HONOUR: - - - given three weeks.

MR CHIDIAC: So all that's required of me now is to just like - with the counsel that I have spoken to, just to advise them how the court would like to proceed with the matter. If we're going to - if it's going to be relisted for interlocutory hearing with the expectation that counsel appears on behalf of the applicant, then that would be the terms that I engage counsel, but if the issue of jurisdiction is able to be pushed back to final hearing, then that would change the circumstances under which I engage counsel. That's what I'm saying.

HIS HONOUR: So are you suggesting that this matter proceed all the way through to a final hearing for the question of jurisdiction to be determined at a final hearing?

MR CHIDIAC: Yes, only because we're confident that the issue can be overcome, particularly with, you know, the respondent also agreeing that the Federal Court is appropriate jurisdiction for the matter.

HIS HONOUR: Mr Chidiac, have you engaged counsel to look at the pleadings that you originally filed in this court to see whether or not those pleadings could be reformulated so that the issue of jurisdiction can be dealt with?

MR CHIDIAC: Yes, I have.

HIS HONOUR: And have you engaged counsel to do that?

MR CHIDIAC: I have sent across documents for counsel to review.

HIS HONOUR: That's not the question I asked; the question I asked was, have you engaged counsel with a view to reformulating the statement of claim to ensure that the question of jurisdiction is dealt with on the pleadings?

MR CHIDIAC: Correct. Yes, I have.

HIS HONOUR: You've briefed counsel to do that?

MR CHIDIAC: Yes.

[Mr Chidiac then identified counsel]

…

HIS HONOUR: Yes. And so have you briefed [counsel] now to deal with the pleadings with a view to ensuring that jurisdiction appears on the face of the pleadings?

MR CHIDIAC: Yes, I have sent him documents. But like I said, we're sort of in a bit of a limbo at the moment, just so we can determine how the matter is going to proceed.

HIS HONOUR: Frankly, I don't understand that, Mr Chidiac. You knew at least three weeks ago that the issue of jurisdiction was live, and the whole point of the adjournment was for you to engage counsel, to discuss with them and to engage them to ensure that the pleadings were put into a shape and form in which the issue of jurisdiction could be dealt with. I think Ms Fitzgerald gave you some fairly pointed indications about how that could be done, and yet nothing has been done. My expectation was that you and Ms Fitzgerald would speak about those issues and that you would then engage counsel who would then produce a statement of claim which would deal with those issues, but it would seem to me that really nothing has been done at all since that time.

MR CHIDIAC: No. So yes. So I guess, well, were just - so obviously, since we're conscious of, you know, not - I know it might seem from a solicitor's point of view that, you know, a solicitor should be on top of all of these things, but what we're sort of - what we're sort of mindful of is the issue of bringing in counsel at such an early stage that it could - well, we're just - well, I guess, from the applicant point of view, we're just mindful of costs at the moment. So all we're doing really, your Honour is just wanting to ensure 100 per cent that there's no alternative way that the matter could be dealt with unless, you know - - -

HIS HONOUR: Well, this is the point of the - - -

MR CHIDIAC: - - - bringing in counsel is an absolute necessity.

HIS HONOUR: Mr Chidiac, these are the - - -

MR CHIDIAC: Like I said, the - - -

HIS HONOUR: Mr Chidiac, this is the point of the things that were said to you on the last occasion, was for you to get your house in order by engaging counsel to look at the pleadings to see whether or not they could be fixed, so that the issue of jurisdiction would be put behind us, but instead what seems to have happened and what you seem to be wanting to do is to kick the can down the road, and that's not the way things happen in this court.

MR CHIDIAC: Okay. So would you like - okay. But can I also make this submission. Supposing, obviously, I call [counsel] today, tell him, look, yes, the matter has been listed for jurisdictional hearing in a month or so - interlocutory hearing.

HIS HONOUR: You don't seem to be listening - - -

MR CHIDIAC: It would - - -

HIS HONOUR: You don't seem to be listening to me. The issue is not about an interlocutory hearing to deal with jurisdiction; the issue is with your pleadings. I don't think I could be any clearer than that. Ms Fitzgerald has also said to you in open court that the issue is with your pleadings, and I know that the respondent has previously said there's no jurisdictional issue, but from what I - and Ms Fitzgerald will correct me in a moment - that's on the basis that the pleadings can be amended to make clear the basis upon which you say there was a duty of care owed to your client. I don't think I could be any more clearer than that. And my expectation - - -

MR CHIDIAC: Right. Okay.

HIS HONOUR: My expectation was that you would engage counsel who would be able to assist you in formulating a statement of claim that would deal with that.

MR CHIDIAC: Right.

HIS HONOUR: If your client wishes to discontinue and take the matter to a different court, that's entirely up to you and him, but I don't think anybody was suggesting that you needed to do that. I think people were saying to you that, if your pleadings are amended in a certain way, then there is a possibility that the matter can stay in this court.

MR CHIDIAC: Right. Okay. I understand. Look - - -

HIS HONOUR: And I was hoping - - -

MR CHIDIAC: Can I just say this. Look, I'm - - -

HIS HONOUR: I was hoping that there would be a discussion between you and Ms Fitzgerald, outside of my hearing, in which that discussion would make those issues clear, that Ms Fitzgerald would sit down with you - maybe not sit down with you, but at least speak to you by video - and point out to you the deficiencies that she saw in your statement of claim with a view to them being rectified.

MR CHIDIAC: All right. Yes. No, I completely understand that. All I'm saying, your Honour is that in the time between the matter was last listed until now, we did look at alternative ways of dealing with the matter so that the issue of - so that the matter isn't being held up by the issue of jurisdiction. That's what I'm saying. I know that that might not align with what was asked at the last hearing, but the reason why I sort of took this approach instead was because I was just mindful that engaging counsel would, at such an early stage of proceedings, would, from the applicant's side, you know, incur more legal costs. So all I was doing was making attempts at mitigating legal costs. That's all I'm saying.

HIS HONOUR: Well, sometimes, Mr Chidiac, it's better to engage counsel at the start; in fact, almost always better to engage counsel at the start, rather than at the end, when everything then needs to be fixed up at the last minute.

MR CHIDIAC: Right. I understand. Yes. And look, having heard you today, I think my takeaway now is to probably narrow the scope in on getting counsel, just to assist in amending the pleadings, and not focusing on alternative ways of dealing with the matter.

HIS HONOUR: Mr - - -

MR CHIDIAC: It's not like from the parties' perspectives, we haven't made any discussions or any progress at all. I think the discussions that I've had with - not with Ms Fitzgerald but with her solicitor, have been productive, in terms of perhaps navigating a way to, you know, further expedite the proceedings. Despite it probably not going how we anticipated, I do think those discussions were productive just for the purposes of, you know, working out what's going to be the best possible way of dealing with the proceedings from both of the parties' perspectives.

33 In her submissions counsel for the respondent said that she understood that based on what had been said at the last case management hearing, it was the Court's expectation that the parties would confer about the deficiencies in the applicant's pleadings with a view to amendments being made and to clarify the basis on which the applicant said that this Court has jurisdiction in respect of the matter. Counsel for the respondent said that her instructing solicitor did make contact with Mr Chidiac to identify whether counsel had been briefed so that the process of discussing the issues with the pleadings could commence. However, according to the respondent's counsel, it very quickly became apparent that a decision had been made to discontinue the proceedings, which is when the issue of costs was raised.

34 Counsel for the respondent also understandably voiced her concerns about Mr Chidiac's submission that the issue of jurisdiction be dealt with at trial because 'it would be very unfortunate for the applicant and the respondent to have spent a significant amount on running a case that might be in the wrong place'. Counsel for the respondent also made the perfectly appropriate submission that 'if a solicitor is not experienced in drafting pleadings, they really do have a duty to the client to have them drafted by counsel'. In that regard, counsel said 'if I could speak frankly, we don't consider it would be productive [to confer about the applicant's statement of claim] until Mr Chidiac retains counsel'.

35 In reply, Mr Chidiac sought to explain the approach that he had taken to the matter since the last case management hearing. As I understood it, Mr Chidiac's position was that he had simply been trying to find the quickest and most cost-effective solution. However, he said that because of what had transpired at the case management hearing he now understood what needed to be done and would bring a 'laser focus' on to that issue.

36 The following exchange then took place:

HIS HONOUR: I can't tell you how to run your case, Mr Chidiac. I can't tell you to engage counsel. I can't tell you any of those things, and I'm not going to.

MR CHIDIAC: Yes.

HIS HONOUR: However, it would seem to me - you've heard Ms Fitzgerald, what she has had to say about it, I agree with her that it would seem to me, and with all due respect to you, that it is in the best interests of your client, and I emphasise 'the best interest of your client', for you to engage experienced counsel to look at the pleadings, and to speak with Ms Fitzgerald and/or those who instruct her, with a view to ironing out any issues that they have with those pleadings, with a view at least to establishing the factual basis for jurisdiction, and I'm not saying - I said at the very least, because I think you will find that Ms Fitzgerald has other difficulties with your pleadings, not just limited to jurisdiction. I'm saying that I think that's in the best interest of your client, because it is more cost-effective for those issues to be ironed out in a conferral process, as opposed to - - -

MR CHIDIAC: Right.

HIS HONOUR: - - - coming back here and dealing with it on an interlocutory basis. And you spoke about Mr - - -

MR CHIDIAC: Right. Okay.

HIS HONOUR: You spoke about [counsel], are you talking about [counsel] who practises in Western Australia?

MR CHIDIAC: Correct. Yes.

HIS HONOUR: Right. Well, I think - and I can only repeat, I think, that it is in the best interests of your client that you take those steps very quickly.

MR CHIDIAC: Sure. I'm happy to - yes, I'm happy - I'm happy to get on to that quite quickly, just because I know - I don't want to - I don't - I would, like, I'm happy to, you know, if it's just simply a matter of amending the pleadings with the assistance of counsel, and then the issue of jurisdiction might resolve by that stage, then I'm happy just to proceed on that basis. I just wasn't sure from the last listing until now whether amending it would have any difference on, you know, deciding whether jurisdiction would be dealt with or not.

HIS HONOUR: I'm not deciding that one way or the other, but you've been given very clear indications about what needs to be done for that issue to be dealt with properly.

37 Mr Chidiac was then asked how long he thought he would need to engage counsel and how long counsel for the applicant would then need to participate in meaningful conferral with counsel for the respondent. Mr Chidiac indicated that he had already spoken to counsel and that he believed that he would probably need three weeks for that to occur.

38 Before adjourning the case management hearing, the Court enquired of Mr Chidiac and counsel for the respondent whether they were available to attend at such a hearing during the week commencing 3 November 2025. Mr Chidiac advised that he had some availability during that week but that he would need to check with the applicant's counsel as to his availability to appear. The case management hearing was then adjourned to a date to be fixed so that Mr Chidiac could obtain counsel's available dates. The Court indicated that the hearing would likely be listed during the week commencing 3 November 2025, but that the Court would be in contact with the parties to fix a date so that Mr Chidiac had some time to ascertain counsel's availability.

39 Following the case management hearing of 13 October 2025, my associate wrote to the parties seeking their availability for a further case management hearing in the first week of November 2025. The following day, the respondent confirmed that counsel was available on 6 November 2025. On 15 October 2025, after no response was received from the applicant, Mr Chidiac was asked to advise whether counsel he had engaged was available for a case management hearing on 6 November 2025. The following week on 22 October 2025, when there had still been no response from Mr Chidiac, my associate again wrote to the parties to enquire whether counsel who had been engaged for the applicant was available to appear at a case management hearing on 6 November 2025.

40 Mr Chidiac eventually responded to my associate the next day, stating (in part) as follows:

I have attempted numerous times to get in touch with [counsel] without success. I will endeavour to get in touch with [counsel] by the end of this week, otherwise we may need to consider alternate Counsel in these circumstances.

41 However, despite the clear implication that he would advise the Court if he remained unable to contact counsel by the end of the week, Mr Chidiac did not communicate with the Court.

42 On 30 October 2025, after more than two weeks in total had passed, my associate was forced to again write to the parties to ask that Mr Chidiac provide the Court with an update regarding counsel's availability to appear at a case management hearing on 6 November 2025. On 3 November 2025, Mr Chidiac replied in the following terms:

Dear Registrar [sic],

My apologies for the delay getting back to you.

I have spoken with Counsel and Counsel is not available on 6 November 2025 for case management hearing as their diary is relatively full at this stage. Counsel has requested if you could please allow some further time for us to attend to the last orders?

We will also endeavour to provide some additional availabilities for the months of November - December so that it is suitable for all parties.

Kind regards,

43 My associate then wrote to the parties and asked for their availability to appear at a case management hearing on 12 or 13 November 2025. My associate also asked that the parties respond by 4.00 pm on 5 November 2025. However, Mr Chidiac did not respond until 6 November 2025. In his email Mr Chidiac apologised for not responding earlier and explained that he had only just seen the correspondence from my associate. After confirming that specific counsel had been briefed in the matter, Mr Chidiac said that he would endeavour to get that counsel's availability to appear at a case management hearing on 13 November 2025 by the close of business that day.

44 Mr Chidiac did not advise the Court of counsel's availability by the close of business on 6 November 2025. Accordingly, on 7 November 2025 my associate wrote to the parties to inform them that a case management hearing had been listed to take place on 13 November 2025.

45 Four days later, on 11 November 2025, Mr Chidiac sent an email to my associate in the following terms:

Dear Associate,

My apologies for the delay in responding to your last email as I was having difficulty getting into contact with [counsel]. Please note that [counsel] is unavailable to attend the Case Management Hearing on 13 November 2025 as he will be in court that day.

However, I can advise that [counsel] has requested to speak via telephone with Ms Fitzgerald for the Defendant prior to the next listing of this matter. Could you please allow for an adjournment of the matter of up to 1-week for these discussions to take place? I do apologise for any inconvenience caused to the parties.

Kind regards,

46 My associate was directed to advise the parties that the case management hearing would proceed as listed on 13 November 2025. My associate also informed the parties that the Court expected that when Mr Chidiac appeared he would be able to provide the applicant's counsel's available dates for a case management hearing in the week commencing 17 November 2025.

47 On 12 November 2025, the solicitors for the respondent wrote to my associate and confirmed that Ms Fitzgerald and counsel who had been retained by Mr Chidiac had conferred and that they were both available to appear at a case management hearing on 20 November 2025.

48 My associate responded to both parties on 12 November 2025 in the following terms:

Dear Parties,

On the basis that both [the applicant's counsel] and Ms Fitzgerald are available to appear at a case management hearing on 20 November 2025, the matter will be listed at 9.45 am AWST on 20 November 2025.

I confirm the case management hearing listed at 10.30 am AWST tomorrow, 12 [sic - 13] November 2025 is vacated.

Kind regards,

(emphasis added)

49 The Court did not receive any response to this email to indicate that 20 November 2025 was inconvenient to either party.

50 Against that background, it is then necessary to turn to deal with what occurred at the 20 November CMH.

The case management hearing on 20 November 2025

51 Counsel who Mr Chidiac had engaged to act for the applicant did not appear at the 20 November CMH listed to commence at 9.45 am AWST.

52 After the Court took appearances at the commencement of the case management hearing, the following exchange took place:

HIS HONOUR: Why are you appearing today?

MR CHIDIAC: Today we're just seeking a short adjournment because we have some proposed orders.

HIS HONOUR: Well, Mr Chidiac - - -

MR CHIDIAC: So what we're - - -

HIS HONOUR: - - - today - Mr Chidiac, today's - there was an email that was sent to the parties on 12 November at 8.19 am from my associate, which said that on the basis that [the applicant's counsel] and Ms Fitzgerald are available to appear at the case management hearing today, that it would be listed today and the clear expectation, not only with that email, but with the emails that preceded it was that [counsel] would be present in court today appearing on behalf of your client. Did you not understand that?

MR CHIDIAC: I'm aware, and I do - yes, yes. You're correct. I do apologise for that, but the adjournment we're seeking is simply on the basis that the - well, we've got instructions to see whether the respondent would be in a position to engage in any settlement discussions at this stage. When I say that, I mean by participation in either mediation or informal settlement conference to possibly resolve the matter before the issue of jurisdiction is decided.

HIS HONOUR: Why is [the applicant's counsel] not here?

MR CHIDIAC: It was an oversight on my part, your Honour.

HIS HONOUR: What did you understand by the email of 12 November that the matter would be listed today on the basis that both [the applicant's counsel] and Ms Fitzgerald would be available to appear? On what basis did you - - -

MR CHIDIAC: So - - -

HIS HONOUR: - - - misunderstand that the clear expectation was that [the applicant's counsel] would appear today?

MR CHIDIAC: So my understanding, your Honour, is that on the 20th, Mr - sorry - for the 20th, [counsel] advised that he might be available on that date, but at the time that I had advised [him] of the new date, that date actually got filled by another matter that he had.

HIS HONOUR: What do you think I should do with this matter, given the way in which you have handled this matter up until this point in time? What do you think I should do?

MR CHIDIAC: Well, I think if there's an opportunity for the parties to engage in a possible resolution of the matter, I think that the parties should be allowed that additional time. I'm not asking for a particularly long adjournment, but I do think given the circumstances, noting that [the applicant's counsel] and Ms Fitzgerald have conferred about the matter, I think there's a possibility that the matter might be resolved in a more time effective manner, as opposed to having the issue of jurisdiction further litigated at this stage.

HIS HONOUR: When did that first occur to you?

MR CHIDIAC: I beg your pardon, sorry?

HIS HONOUR: When did the idea of adjourning today's case management hearing, with a view to making orders that somehow there would be a conferral between the parties about settlement - when did that first occur to you, that today's case management hearing should be adjourned on that basis?

MR CHIDIAC: So I spoke with - I conferred with [the applicant's counsel] on Monday, and I did also have another chat with him this morning about the matter. Mind you, the last adjournment was only last week, so we're not looking at a very long period of time.

HIS HONOUR: So the first time it occurred to you that today's case management hearing should be adjourned was on Monday of this week?

MR CHIDIAC: Correct.

HIS HONOUR: Have you spoken to Ms Fitzgerald between Monday and today about adjourning today's case management hearing?

MR CHIDIAC: No. But I did attempt to speak to my friend [the respondent's solicitor] this morning, but I wasn't able to get through to her successfully.

HIS HONOUR: So if I was to adjourn today's case management hearing, would it be fair to say that the case management hearing today has been a complete waste of time?

MR CHIDIAC: I wouldn't say it's a waste of time, just given the fact that having today's case management hearing has allowed me appropriate time to confer with counsel and with my client about getting these instructions. I think given the circumstances, given how - given that this matter could be potentially more complex for both counsel involved, counsel and I did discuss that this would be - we would indicate this as a potential option before, you know, ruling it out completely and deciding from there that, you know, the matter of jurisdiction does need to be heard definitely.

HIS HONOUR: Where is [counsel] this morning?

MR CHIDIAC: He just told me he's not available this morning because of another matter. I'm not sure where he is.

HIS HONOUR: Did he tell you which other matter he was involved in?

MR CHIDIAC: No. He didn't. I'm sorry.

HIS HONOUR: Did he tell you whether he was involved in that other matter in another court at 9.45 today?

MR CHIDIAC: I'm not - like I said, I'm not sure whether he was appearing in another matter or not. He just said he was unavailable.

HIS HONOUR: Mr Chidiac, if I was to adjourn today's case management hearing as you have requested, is there any reason why you should not pay the costs of today's case management hearing personally?

MR CHIDIAC: Yes. I can give - I can give submissions as to that. Simply because I don't think a solicitor should be expected to pay costs when seeking an adjournment on the basis that there is a potential for the matter to resolve. I think if a solicitor was to seek an adjournment on the basis that there is an opportunity for an early settlement discussion, the matter - that costs shouldn't be awarded against that solicitor on that basis. And can I also just say this is only the first time that the matter - that the suggestion that the matter be adjourned for the parties to get instructions about early settlement has been sought. We haven't sought this previously. It's simply the first time that an adjournment has been sought on this basis.

HIS HONOUR: Except that you considered for the first time that the case management hearing should be adjourned on Monday of this week, and it was only just recently that you attempted to contact [the respondent's solicitor] about whether or not it should be adjourned; is that right?

MR CHIDIAC: Yes. But having said that, I still don't think that given the short amount of time between the previous adjournment, which was only the 12th of last week, to today, I don't think we've used our time inefficiently on that basis. One other thing I will say is that often the discussions that occur between counsel being privileged for the purposes of today's conference, that there is more I would like to say on the matter, but obviously I can't just because of that understanding of confidentiality.

HIS HONOUR: I don't understand that, Mr Chidiac. I'm sorry.

MR CHIDIAC: And like I said previously, I did also attempt to reach out to my friend this morning on the off chance that we could possibly have the matter - today's case management hearing adjourned, or at least have orders by consent to that effect. But obviously it has more - it has just been a timing issue.

HIS HONOUR: Did you attempt to contact Ms Fitzgerald?

MR CHIDIAC: No. I didn't attempt to contact Ms Fitzgerald.

HIS HONOUR: Why not?

MR CHIDIAC: I didn't feel like it's my place as a solicitor where counsel is also involved.

53 At the risk of further burdening these reasons with swathes of transcript, it is useful to record in full the submissions counsel for the respondent, who had recently been appointed as senior counsel, gave in response to what Mr Chidiac had to say:

MS FITZGERALD: Your Honour, I do have instructions to seek costs to be payable in this case directly by Mr Chidiac. It would, in my submission, be very unfortunate if Mr Chidiac's client were required to pay for what is clearly Mr Chidiac's misunderstanding of the remarkable waste of taxpayers' money that has been involved in the scheme litigating this matter. This is a scheme set up to provide redress for victims of child sexual abuse, and I'm embarrassed at the amount of fees I have incurred the scheme in getting this matter to today. I reached out to [the applicant's counsel] myself. [Counsel] didn't reach out to me. I reached out to him on 11 November. I left a call and he returned my call. He then emailed me back. The adjournment last week was agreed to specifically because [counsel] and I both triangulated our diaries and today was a date that we were both available, and the reason we consented to the adjournment last week was specifically because we felt sure that [the applicant's counsel's] involvement in this matter would be beneficial for both our client and Mr Chidiac's client.

Now, we consented to that specifically because [counsel] was available. I understood that he had been retained from his email of the 11th, he confirmed that he had been retained and the matter was specifically adjourned to suit him. Now, obviously [counsel] is not here to defend himself so I don't say anything about those things. But we simply say that my instructor tells me that she has had two missed calls. She was in a tribunal conference first thing this morning. She has two missed calls at 9.36 am and then one from before it at 9.29 am. If Mr Chidiac has been aware that an adjournment would be needed since Monday, there were other things that I could well have been doing and I'm sure my instructor could have been doing, and he should, as a matter at least of professional courtesy, have reached out before now.

My instructions are quite firmly to seek costs directly against Mr Chidiac who has been given the most remarkable indulgences in this proceeding, including by my client. Your Honour will recall that this is the first - if I might speak plainly - tantrum that I've had in this entire proceeding when it has been conducted in the most remarkably chaotic, relaxed and lackadaisical manner by Mr Chidiac and he will not learn the seriousness of these proceedings and the amount of money being expended by respondents in these proceedings unless he has to pay for that himself personally. And, in my submission, that is well within the exercise of the court's discretion to have officers of the court that owe duties to the court understand the gravity of their duties and this is really the only way, I think, Mr Chidiac will learn the gravity of his duties and those are my submissions, your Honour.

54 The matter was then stood down briefly, after Mr Chidiac was directed to make enquiries to ascertain whether counsel was available to attend at the case management hearing later during the day.

55 When the matter resumed, it became apparent that the applicant's counsel would not be able to attend at the case management hearing. However, I was informed by senior counsel for the respondent that she had spoken to the applicant's counsel during the adjournment, and that he had told her that he was available on 25 November 2025. On that basis, I then listed the matter for case management on 25 November 2025 and made it clear that it was my expectation that counsel who had been retained by Mr Chidiac would appear.

56 Before adjourning the case management hearing, I told Mr Chidiac that I was concerned about the circumstances in which the adjournment had become necessary. Accordingly, I made an order that by 4.00 pm AWST on 24 November 2025, Mr Chidiac was to file and serve an outline of written submissions and any affidavit evidence upon which he wished to rely in relation to the question of whether an order should be made that he personally pay the respondent's costs of the adjourned case management hearing. I also asked Mr Chidiac whether he intended to charge the applicant for his appearance that day. Mr Chidiac responded by saying that he did intend charging his client as it was 'part of work in progress', but he also indicated that he would be 'happy to wipe it if it's found that … [he] didn't use the time efficiently as [he] could have'.

57 Just before the Court was about to adjourn, my attention was drawn to the fact that there was an unidentified person in the Microsoft Teams lobby, which was being used to enable remote appearances. It soon became apparent that this person was the applicant's counsel. When counsel was allowed to join the Microsoft Teams link and communicate with the Court, it was clear that he was shaken and embarrassed. Counsel informed the Court that that he 'was not advised of the hearing', and he pointed out that he had never missed an appointment in many decades of legal practice.

58 In those circumstances, and after senior counsel for the respondent responsibly said that she would make contact with the applicant's counsel after the hearing, the Court was adjourned.

59 Having provided a detailed overview of the background to this matter, I will now deal with Mr Chidiac's response to the question of whether he should be ordered to personally pay the respondent's costs of the 20 November CMH.

Mr Chidiac's affidavit

60 Despite Mr Chidiac's express indication that he gave to the Court that he understood that he was expected to comply with the Court's order to file his submissions and any affidavit material by 4.00 pm AWST on 24 November 2025, he failed to comply with that order. Mr Chidiac belatedly filed an affidavit later that night at 9.36 pm AWST. Mr Chidiac did not condescend to apply for an extension of time in advance of filing his affidavit, nor did he provide any explanation for his failure to comply with the Court's order at the time it was filed.

61 Mr Chidiac's affidavit was in the following terms:

1.    I am the Applicant's solicitor in these proceedings.

Chronology of proceedings

2.    On 12 November 2025, Sparke Helmore Lawyers wrote to the Federal Court advising that Counsel for the Applicant and Respondent had conferred in these proceedings and were available on 20 November 2025 for Case Management Hearing.

3.    I confirm that on 12 November 2025 I received the email from the Federal Court advising that the matter is listed for Case Management Hearing on 20 November 2025 with the expectation that Counsel be present at that hearing.

4.    Due to an administrative oversight on my part, the date & time of this Case Management Hearing was not scheduled in the diary of [counsel for the applicant] prior to the Case Management Hearing taking place on 20 November 2025. However, I was able to speak with [counsel] prior to this Case Management Hearing to discuss the orders sought based on the discussions that took place between Counsel for the Applicant and the Respondent.

5.    In these discussions, it was raised by [counsel] about the possibility of having early settlement discussions in circumstances where the issue of jurisdiction is agreed upon by the parties.

6.    At the Case Management Hearing on 20 November 2025, I sought a short adjournment on the basis that we would be proposing early settlement discussions with the other side so as to facilitate a quick and early resolution of these proceedings. It should be noted that this was the first an adjournment sought [sic] on this basis in these proceedings, and that Courts should normally allow short adjournments. Carryer v Kelly [1969] 2 NSWR 769; Petrovic v Taara F orm work (Canberra) Pty Ltd (1982) 62 FLR 451.

7.    Also at the Case Management Hearing on 20 November 2025, noting that Counsel's attendance at the Case Management hearing was essential, His Honour did grant an opportunity for myself to contact [counsel] to ascertain whether [counsel] would be available to attend on that day. After contacting [counsel], [counsel] was able to appear remotely by telephone at the Case Management Hearing. Orders for the adjournment were then made to the parties [sic] for the next Case Management Hearing to take place on Tuesday, 25 November 2025 at 10am AWST.

Submissions against Costs by the Applicant's solicitor to the Respondent

8.    It is submitted that it is appropriate to request to adjournment [sic] of proceedings where there is a possibility of an early resolution of proceedings. In this regard, I refer to Rule 28.01 of the Federal Court Rules 2011 (Cth), where it is stipulated: ' Parties must, and the Court will, consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable. If appropriate, the Court will help implement those options.'

9.    Even if this reasoning is not accepted, then a short adjournment (i.e. a couple of hours or a day) should have been allowed generally: Carryer v Kelly [1969] 2 NSWR 769; Petrovic v Taara F orm work (Canberra) Pty Ltd (1982) 62 FLR 451.

10.    With regards to [counsel's] attendance. I can confirm an opportunity was given for the Applicant to contact [counsel], and [counsel] did attend remotely via telephone at the Case Management Hearing on 20 November 2025.

11.    Lastly, it is submitted that the Respondent's solicitors suffered no waste of costs at the Case Management Hearing on 20 November 2025 as (1) Applicant's Counsel did attend remotely on this day, and (2) both parties were in agreeance of the Orders made prior to the matter being stood over.

The case management hearing of 25 November 2025

62 At the case management hearing on 25 November 2025, counsel for the applicant appeared in person. He informed the Court that these proceedings had been commenced, and the statement of claim had been prepared, without the assistance of counsel. Counsel also advised that he had been retained to consider whether the applicant even had a cause of action and, if so, whether the Court had jurisdiction in relation to the matter. Counsel advised that for him to properly reach a view about those issues he needed some further time to take instructions from the applicant. In that context, counsel also informed the Court that the applicant speaks English as a second language. Accordingly, counsel submitted that the case management hearing should be adjourned to 24 December 2025. On that basis, a further case management hearing was listed on 24 December 2025, and counsel was then excused from further attendance at the rest of the case management hearing.

63 It may be noted that the case management hearing listed on 24 December 2025 was subsequently vacated after the parties filed a memorandum of consent orders, and a further case management hearing was listed on 10 March 2026. Orders were also made requiring the applicant to file an amended statement of claim by 20 February 2026.

64 The Court then turned to deal with the question of whether an order should be made that Mr Chidiac personally pay the respondent's costs of the 20 November CMH.

65 Mr Chidiac did not begin his submissions with an explanation for his failure to comply with the Court's order of 20 November 2025, concerning the filing of written submissions and affidavit evidence. Otherwise, he set about dealing with the issue of whether he should personally pay the legal costs of the respondent in a promising fashion by acknowledging that there had been an 'oversight' on his part and by accepting that inconvenience had been caused. However, Mr Chidiac then quickly sought to persuade the Court not to make such an order by suggesting that there 'was a utilisation of [the 20 November CMH]', notwithstanding his failure to ensure that counsel for the applicant appeared at that hearing so that productive consideration might then be given to the issues the Court had previously raised with the parties.

66 It is difficult to summarise Mr Chidiac's oral submissions. He was obviously under pressure, and he struggled at times to clearly articulate himself. I took that into account when weighing what he said.

67 Mr Chidiac referred to the fact that the applicant's counsel did ultimately appear at the 20 November CMH, albeit briefly by telephone. He also appeared to suggest that the 20 November CMH had not been wasted because an adjournment would have been required in any event as the applicant wished to engage in settlement discussions. He also contended that 'the end result from what was achieved last Thursday was still useful for the … progression of the proceedings'.

68 After seeking an explanation from Mr Chidiac for his failure to comply with the Court's order to file submissions and any affidavit material concerning the question of costs, he was then asked to explain what he meant when he said in his affidavit that the date and time of the 20 November CMH was not scheduled in counsel's diary because of 'an administrative oversight' on his part. This was Mr Chidiac's explanation:

MR CHIDIAC: So, I can tell you just from when I initially saw the email that was adjourning the matter to the 20th, my understanding was initially - and I accept that this is just an error on my part - that the date had already been decided between the counsel, and that's - you know, leading up to the 20th, that was what the plan was going to be. Now, I know that's me misreading the email. And I'm not making excuses for that, but to understand - - -

HIS HONOUR: So, you believe that [counsel] already knew that the matter was listed on the 20th?

MR CHIDIAC: I believed at that time that when Ms Fitzgerald and [counsel] confirmed that they were available on the 20th, that that date was, in effect, already put in place at the time.

HIS HONOUR: When did you first realise that [counsel] was not available on the 20th?

MR CHIDIAC: When I was actually preparing in the lead up to the 20th, I was looking at it the day before, having another review.

HIS HONOUR: Well, I think you told - - -

MR CHIDIAC: And that's when it was found. Sorry.

HIS HONOUR: So, it was the day before the 20th that you realised - - -

MR CHIDIAC: Correct.

HIS HONOUR: - - - for the first time that [the applicant's counsel] was not available.

MR CHIDIAC: Correct. It was actually the night before - like, the night before when I was preparing, because I work - I know this could probably be another criticism, but I tend to, when I have a matter listing for the following day, I tend to narrow in on what needs to be done for that hearing. Now, when I realised that I wasn't going to be - that there was an oversight, I immediately called him the following morning and I told him that, you know, 'This is the situation.' Obviously, I've made a mistake.

HIS HONOUR: So, when did that call take place?

MR CHIDIAC: So we discussed - - -

HIS HONOUR: When did that call take place?

MR CHIDIAC: The morning of the 20th, so before.

HIS HONOUR: So, when you appeared in front of me and you sought an adjournment in order for the parties to confer about settlement, you didn't make mention of those things at all. You didn't tell me that you had assumed that [counsel] and Ms Fitzgerald had fixed upon the 20th. You didn't tell me that the day before was the first time that you realised that [counsel] was not, in fact, available. Instead, you turned up to court, and you sought an adjournment for the purposes of settlement.

MR CHIDIAC: Yes, like, I - just to clarify, I didn't get to say, obviously, everything that I wanted to say. And also, since you gave me an opportunity to provide an affidavit, you know, explaining all of those things, I thought I would - if there's anything that I hadn't explained that day, you know, just as a reasoning for the oversight - - -

HIS HONOUR: Are you suggesting I didn't give you an - - -

MR CHIDIAC: - - - that's what I sought to include in the affidavit.

HIS HONOUR: Are you suggesting you weren't given an opportunity to explain yourself? The first thing that you said - - -

MR CHIDIAC: No, no, no. Sorry.

HIS HONOUR: The first thing that you said was that you wanted an adjournment - - -

MR CHIDIAC: Correct.

HIS HONOUR: - - - so that settlement discussions could be undertaken. There was no indication whatsoever on your part that the reason really why you were applying for an adjournment was because [counsel] was not available.

MR CHIDIAC: Well, they weren't mutually exclusive. Like, yes, it's - yes, there was an oversight, but when me and [counsel] had spoken, we discussed about there being a possibility of an early resolution of the matter. So, that's what my instructions were at the time. They're not - it's not, me not having expressed that at the time, please don't take that as me, you know, being deceptive or not being upfront. It wasn't a case of like ..... a case of that. It was simply a matter of, 'Okay. This is the situation we're in. Moving forward, what are the orders that we are going to be seeking for the purposes of this case management hearing?'

Now, perhaps - look, perhaps probably where a lot of these issues are stemming from is that in the previous Federal Court matters I've had - I guess I haven't been used to this level of, obviously, you know, ensuring that, for the purposes of each individual case management hearing, everything needs to be in order and finalised by the applicant so that we're always making progression. The way I've dealt with my previous Federal Court matters is that, obviously, when you have a case management hearing date, you provide what orders that you're seeking based on the stage of where the parties are at. Obviously, you communicate with the other side, you know, to prepare some proposed orders and you proceed on that basis.

I'm not used to sort of at each case management hearing having to provide submissions about the way the matter has been run. But perhaps that's just my - you know, maybe that's my lack of experience being shown. But please don't take anything I'm saying as, you know, me, you know, burying my head in the sand or not taking these matters seriously. It's probably just a - it's probably just I'm having to adjust the way I manage these cases. So, just in that regard, I'm hoping that you could understand - you could have a bit of leniency in that regard. I'm not - like I say, I'm not saying that I've gone about case management in an ideal manner, as one would expect as a solicitor, but what I'm saying is that, you know, I have taken an approach that has worked for me in the past. Obviously, it's not - obviously, I would need to make changes. Moving forward now that counsel is appearing at case management hearing, it will just be a matter of ensuring with counsel that all of the orders from this stage onwards, there's no more excuses from this point onwards.

So I just hope you can appreciate that. Like I said, it's not - I can swear on oath now none of it is to do with me not appreciating the court, me not having any idea what I'm doing, although I do admit as lawyers we're always growing, we're always improving ourselves. I can tell you if probably - if it is going to come down to something, it might come down to, as a sole practitioner, maybe given the amount of work that I've had over the past couple of months, not prioritising the work that's required for this matter on a more urgent basis, I can admit that. I have no issue admitting that it probably does come down to time management and case management, that type of thing.

But it's not - I can assure you it's not a matter of me not respecting the court's time, or me not understanding the severity of the situation. So just on that basis alone, I hope you can appreciate the situation that I'm in. Like I said, if this is the last time I'm having to give submissions about the progression of the matter, then I think that would actually be preferable for yourself, because that means you probably won't. I won't have to, you know, keep justifying myself for, you know, not meeting the standard that's required of a solicitor. You will just be hearing from counsel from this point onwards.

69 After Mr Chidiac then explained his failure to comply with the Court's order concerning the filing of written submissions and affidavit evidence, he was asked whether he accepted that he was responsible for the fact that the 20 November CMH need not have taken place.

70 As it was difficult to understand Mr Chidiac's submissions, I will simply reproduce them:

Yes, I can acknowledge that the - I mean, I will say, I don't think - like I said, I don't think it was unproductive, the case management hearing on the 20th. The reason I say that is because I see it as normal when you have a - when you have a case - when you have an ongoing litigation, and you have a directions, or you have a case management hearing of that type, you're going to have a date where, perhaps you need a bit of extra time to consider something, or perhaps you don't, you know, there will be situations where the circumstances just don't play out in your favour.

I can admit that probably in the time that it took to get that final, that resolution at the 20th probably could have been done much quicker, had I not overlooked the issue of notifying [counsel] of the - properly of the case management hearing, but I think the end result of where we got to that day, being having at the very least [counsel] on the phone to reiterate what his position was, that in itself meant that if it was, if it did come down to a matter of urgency, we were prepared to deal with that. Like I said, I'm not excusing that it couldn't have been done more efficiently, but I don't also say that it was a waste of time completely that, you know, the respondent's costs or the court's time was, were a complete waste.

71 When Mr Chidiac had completed his oral submissions, senior counsel for the respondent then made several forceful submissions in support of her contention that an order should be made that Mr Chidiac pay the respondent's costs of the 20 November CMH. It is unnecessary to refer to everything that was said by senior counsel. However, and for the avoidance of doubt, in deciding to make a costs order against Mr Chidiac I did not take any of senior counsel's submissions concerning the communications she said she had with the applicant's counsel into account as they were not the subject of evidence.

72 Senior counsel submitted that it was obvious that Mr Chidiac did not understand the seriousness of what had occurred on 20 November 2025. In that regard, she noted that the Court had, on several occasions, made it very clear to Mr Chidiac that it was 'essential to bring counsel into this matter to serve the client appropriately'. Senior counsel submitted that what had emerged from Mr Chidiac's submissions was that he had failed to competently carry out an essential part of his role as solicitor for the applicant, which was to brief counsel to appear at the 20 November CMH. As senior counsel put it, '[o]ne fundamental practice in having a barrister appear on a particular day is to tell counsel that they are briefed for that day, and that did not occur'.

73 In my view, the remainder of senior counsel's submissions can be adequately summarised by reproducing the following:

We didn't need to appear to get an adjournment to discuss settlement options; that could have happened earlier in the week. You will recall, last week, Mr Chidiac, on his feet, said that he was aware - he had known that they would want an adjournment since the beginning of that week. So, to the extent that he says there are two non- mutually exclusive reasons for needing an adjournment, one of them [the prospects of settlement discussions] he knew well before, earlier in the week; one of them [the fact that counsel had not been briefed to appear] he just knew the night before; either of which he should have notified us of, in order to avoid wasting the costs.

74 In those circumstances, the respondent's position was that it should not have to bear its costs of the 20 November CMH that had been wasted. Further, as it was Mr Chidiac who was responsible for those costs being wasted, it was submitted, in effect, that it would be just for him to pay them personally, rather than for the burden of those costs to fall on the applicant.

75 In his reply, Mr Chidiac accepted that it was because of his mistake that counsel briefed to represent the applicant had not appeared at the 20 November CMH. He appeared to suggest that he needed to learn not to do everything himself, that he should ask for help, and that he puts too much pressure on himself as a sole practitioner to do everything himself.

76 However, Mr Chidiac also reiterated, that in his view, the 20 November CMH had not been a waste of time. When he was asked to explain what had been achieved at the case management hearing, Mr Chidiac said that counsel were able to confer when the hearing was stood down and, before it was finally adjourned, about the period over which the hearing should be adjourned. He also said that at the 20 November CMH the Court was informed for the first time that there was an opportunity for early settlement negotiations. Mr Chidiac also referred to r 28.01 of the Federal Court Rules 2011 (Cth), and to the obligation on the parties to consider options for alternative dispute resolution as early as is reasonably practicable. In that context he said:

That's part of the reason where my misunderstanding came, because my understanding of that section of the legislation meant that a short adjournment on that basis would have been accepted by the court despite the initial plan to have both counsel present at that case management hearing. I know that's a - you could say that's a misunderstanding of what I could have expected. And again, if it comes down to me perhaps not doing things in the most efficient way or not understanding exactly what the court is seeking from its practitioners, then I can accept that.

77 Mr Chidiac also said:

I went into Thursday's case management hearing with a plan, despite the mistake that was made, because I wanted - you know, as a solicitor, it is your duty, if you make a mistake, that you be allowed the opportunity to correct it. And in my view the actions that I took leading up to the case management hearing on Thursday and during the Thursday case management hearing were all steps that formulated, you know, a correction to that oversight.

78 Mr Chidiac reiterated that he had attempted to contact the solicitor for the respondent on the morning of the case management hearing, although he acknowledged that 'it could have been done sooner'.

79 Finally, Mr Chidiac submitted that the 20 November CMH had not been a waste of time because if counsel for the applicant had appeared at that hearing 'it would have played out very similar to how it played out on Thursday or today, and as you can see from today, the matter has been adjourned till the end of this year'.

Why Mr Chidiac was ordered to pay the respondent's costs

80 From the very first case management hearing, the Court identified that there was an important issue that needed to be resolved concerning the Court's jurisdiction. The Court also identified that there were related issues with the applicant's statement of claim. However, Mr Chidiac has either been unwilling or unable to appreciate that it was his responsibility, as the applicant's lawyer, to address those issues so as to ensure that these proceedings are conducted in a way that is consistent with the overarching purpose in s 37M of the FCA Act.

81 At least by the end of the second case management hearing that took place on 31 July 2025, Mr Chidiac must have appreciated that the Court expected that, by the next hearing, he would have given careful consideration to the issues that had been raised with him and to have obtained the assistance of counsel, which appeared to be necessary, with a view to engaging in conferral with the respondent so as to deal with those issues as quickly, inexpensively and efficiently as possible. However, when Mr Chidiac appeared at the hearing on 13 October 2025, it quickly became apparent that little had been achieved in the two and a half months that had by then passed, despite Mr Chidiac making a submission on that occasion that he had been attempting to identify the most cost-effective and quickest way to deal with the issues raised by the Court.

82 At the conclusion of the hearing on 13 October 2025, Mr Chidiac gave every outward indication that he understood that the Court held the firm view that it would be in the applicant's best interests for Mr Chidiac to brief counsel (which he said had already occurred) so that meaningful conferral could take place between the parties to deal with the issue of jurisdiction and to rectify the obvious deficiencies in the statement of claim as quickly, inexpensively and efficiently as possible. Mr Chidiac could also have been under no misapprehension about the significance of what had been said on behalf of the respondent about its preparedness to engage in such conferral. In that regard, counsel for the respondent said the following at the hearing on 13 October 2025:

Your Honour, I don't need to be heard on any other issues, other than [that the respondent has] a strong preference, that whilst we're very happy to work with the applicant to flush out the issues with the pleading as we see it, if I could speak frankly, we don't consider it would be productive until Mr Chidiac retains counsel.

83 The proceedings were adjourned at the end of the hearing on 13 October 2025 to a date to be fixed. However, before the adjournment, and after counsel for the respondent had indicated that she had limited availability, Mr Chidiac said that he would make sure that he obtained the applicant's counsel's available dates 'straight away'. Mr Chidiac therefore clearly understood that the Court was adjourning the proceedings to allow time for him to ascertain counsel's availability to appear at the next case management hearing. He also understood that time was being allowed for counsel, whom he said had already been briefed, to review the statement of claim and then confer with counsel for the respondent. The Court very clearly expected that the applicant's counsel would then appear at the next case management hearing so that the future conduct of the matter could then be efficiently progressed. That these were the reasons why the case management hearing was adjourned was reinforced to Mr Chidiac in the communications that were then subsequently exchanged between the Court and the parties: see, in particular, the email from my associate to the parties reproduced above at [48].

84 The next case management hearing was listed on 20 November 2025 - a date the Court had been led to believe was available to counsel for both parties. As senior counsel for the respondent said, her client had agreed that the case management hearing be listed on that date,

specifically because we felt sure that [the applicant's counsel's] involvement in this matter would be beneficial for both our client and Mr Chidiac's client.

85 However, it emerged at the 20 November CMH that although over a month had by then elapsed, Mr Chidiac had failed to brief counsel to appear. There was no direct evidence about whether Mr Chidiac had used the period since 13 October 2025 to brief counsel to review the statement of claim, or whether he himself had undertaken that task, or whether any relevant conferral with the respondent had occurred. However, I note that when counsel for the applicant eventually appeared on 25 November 2025, he said that he required an adjournment to give him time to consider whether the applicant even had a cause of action and, if so, whether it gave rise to a matter over which this Court has jurisdiction. For the avoidance of doubt, this should not in any way be understood as a criticism of the applicant's counsel.

86 I am unable to ascertain exactly why Mr Chidiac failed to brief counsel to appear at the 20 November CMH. Perhaps Mr Chidiac simply assumed that counsel for the applicant would appear after counsel for both parties had conferred about their available dates. Nevertheless, when Mr Chidiac appeared on 20 November 2025 and the Court asked him why he was appearing, instead of immediately advising the Court that he had failed to properly brief counsel, he announced that he was seeking a short adjournment. It soon emerged that what Mr Chidiac had in mind was a further adjournment so that the parties could engage in settlement negotiations, with a view no doubt to thereby side stepping having to deal with issues about the statement of claim or the related jurisdictional issues. It was only when the Court asked Mr Chidiac a direct question about why counsel, who he had previously said was briefed in the matter, had not appeared that he said that it was because of 'an oversight' on his part.

87 When Mr Chidiac was asked at the case management hearing on 25 November 2025 to explain when he first appreciated that counsel would not be available to appear at the 20 November CMH, Mr Chidiac said that it was while he was preparing the night before the 20 November CMH. Mr Chidiac said that when he realised his 'oversight', he telephoned the applicant's counsel on the morning of the case management hearing and told counsel that he had made a mistake. Mr Chidiac said that he also attempted to contact the solicitor for the respondent on the morning of the 20 November CMH. Based on Mr Chidiac's explanation, it appears that he only attempted to contact the solicitor for the respondent '30 minutes before the case management [was] set to take place', which, as Mr Chidiac is based in Sydney, must have been at approximately 12.15 pm AEDT.

88 However, notwithstanding the background to this matter, and despite having had well over a month to ensure that the applicant's counsel was briefed to appear at the case management hearing and, more importantly, to ensure that someone appeared on behalf of the applicant at that hearing who was in a position to assist the Court deal with this matter in a manner consistent with the overarching purpose, Mr Chidiac failed to properly brief counsel to appear. Given what the applicant's counsel said on 25 November 2025 about needing time to consider whether the applicant even had a cause of action, it seems safe to conclude that during that time, Mr Chidiac had also given little or no attention to the issues the Court had been raising with him for over six months.

89 Mr Chidiac's attempts to contact the solicitor for the respondent 30 minutes before the 20 November CMH was listed to commence came far too late to avoid the hearing taking place and thereby to avoid the respondent unnecessarily incurring legal costs associated with preparing for and attending at that hearing.

90 Unfortunately, all of this meant that, once again, the Court was not provided with the assistance it required to manage the issues that had been raised with Mr Chidiac for over six months. T he 20 November CMH was an abject waste of time.

91 In all the circumstances as I have explained them Mr Chidiac failed, in my view, to take account of the duty imposed on the applicant by s 37N(1) and thereby failed to comply with the duty imposed on him by s 37N(2) of the FCA Act. Mr Chidiac further failed to assist the applicant to comply with his duty under s 37N(1), to conduct these proceedings in a way that is consistent with the objectives of the overarching purpose, including the efficient use of judicial resources and the disposal of proceedings in a timely manner.

92 I do not accept Mr Chidiac's somewhat surprising submission that the applicant's counsel did in fact 'appear' at the 20 November CMH. Counsel most certainly did not appear at that hearing on behalf of the applicant. What counsel did was contact the Court to express his embarrassment at the unfortunate situation in which he had been placed and to explain that he had not been advised that the hearing had been listed. It seems from what counsel told the Court on that occasion that he felt that the situation was serious enough for him to cancel a medical appointment so that he could urgently communicate his apologies to the Court. Although counsel's efforts to communicate with the Court were appreciated, there was no reason for him to apologise for what had occurred.

93 In his submissions on 25 November 2025, Mr Chidiac appeared to suggest that despite everything, the 20 November CMH had not been 'unproductive' because the Court had been informed for the first time that an opportunity for the parties to engage in settlement discussions had presented itself. Mr Chidiac appeared to submit that the hearing gave him the opportunity to propose that there be a further short adjournment of the proceedings to facilitate an early resolution. In support of that submission, Mr Chidiac referred to r 28.01 of the Federal Court Rules, which provides that parties to proceedings in this Court are required to consider options for alternative dispute resolution as early as is reasonably practicable.

94 In my view, when Mr Chidiac realised that he had failed to brief counsel to appear at the 20 November CMH he decided to try to salvage the situation by seeking an adjournment of the proceedings on the basis that it would facilitate settlement discussions. In reaching that conclusion, I do not discount the possibility that he had previously considered proposing to the respondent that the parties engage in settlement negotiations. However, at the case management hearing on 25 November 2025, and in answer to a question from the Court about why he had not mentioned counsel's unavailability when he first sought the adjournment, Mr Chidiac himself said that '[i]t was simply a matter of, "Okay. This is the situation we're in. Moving forward, what are the orders that we are going to be seeking for the purposes of this case management hearing?''' Similarly, and at a later point during the hearing on 25 November 2025, Mr Chidiac said that he went into the 20 November CMH with a 'plan', despite the mistake he had made. He said that this was because he, in effect, wanted to have 'the opportunity to correct it'. He also said that the actions he took both in the lead up to and during the case management hearing were all formulated to 'correct' his 'oversight'.

95 It is regrettable that Mr Chidiac decided to adopt this course of action.

96 At the 20 November CMH, Mr Chidiac told the Court that it had first occurred to him that the case management hearing should be adjourned to facilitate settlement discussions between the parties on the Monday of that week, 17 November 2025. Accepting that to be so, it follows that Mr Chidiac then further failed to comply with his duties under s 37N(2) of the FCA Act by leaving it until virtually the last minute before attempting to contact his opponent to discuss the prospect of adjourning the proceedings by consent, by which time there was no realistic prospect of avoiding the necessity for the case management hearing to proceed.

97 Given the way in which the respondent and its legal advisors have conducted themselves to date it is highly likely that, had Mr Chidiac attempted to confer with them much earlier than 30 minutes before the 20 November CMH, an adjournment would have been jointly sought by the parties, the need for appearances would have then been avoided and the Court's time would not have been wasted. As senior counsel for the respondent indicated at the 20 November CMH, her 'instructions in relation to engaging with Mr Chidiac on his client's behalf in some early settlement discussions are certainly not to discourage that'.

98 In no way could it reasonably be said that there was some utility in the 20 November CMH simply because Mr Chidiac used that opportunity to seek an adjournment to enable the parties to have settlement discussions. Such a proposition is entirely circular. An adjournment for that purpose could and should have been sought after conferral with the respondent's solicitors well before 30 minutes before the 20 November CMH was listed to commence.

99 I accept that the power to make a costs order against a party's lawyer should be exercised with considerable caution and only in clear cases. However, I consider that the circumstances of this case justify the exercise of the Court's discretion under s 43(3)(f) of the FCA Act. Despite having been very clearly put on notice that the Court required assistance at the 20 November CMH to deal with the issues it had been raising with him over a considerable period, Mr Chidiac failed to ensure that such assistance was made available, thereby rendering the hearing a wasted effort. Mr Chidiac's decision to apply for an adjournment at the 20 November CMH to enable the parties to engage in settlement discussions does not assist him. Based on what he told the Court, Mr Chidiac first considered seeking an adjournment to enable settlement discussions to take place some days before the hearing, but only saw fit to make an attempt to contact the solicitor for the respondent 30 minutes before the hearing was listed to commence.

100 In my view, Mr Chidiac's conduct can properly be described as 'unreasonable'.

101 The respondent unnecessarily incurred legal costs associated with its preparation for, and attendance at, a hearing that was rendered pointless. The respondent should not be required to bear those costs. It would also be positively unjust for the applicant himself to be liable to pay those costs.

102 For these reasons, I considered that I should exercise my discretion under s 43(3)(f) of the FCA Act to make an order that Mr Chidiac personally pay the respondent's legal costs of the 20 November CMH.

| I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen. |
Associate:

Dated: 24 February 2026

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