Cassidy v Murray

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeremy & Taklit has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By a Notice of Appeal filed on 2 December 2025, the appellant, who is a solicitor for one of the parties, appeals an indemnity costs order made against him by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 6 November 2025.
2. The respondent opposed the appeal but, in the event the appeal was allowed, sought this Court re-exercise discretion in relation to the oral application for indemnity costs made by the respondent in the hearing before the primary judge. For the reasons set out below, the appeal will be allowed, the order for indemnity costs will be set aside and in the re-exercise of discretion, the respondent's oral application for costs will be dismissed.

1. On the morning of the first day of a hearing between de facto parties pursuant to Pt VIIIAB of the Family Law Act 1975 (Cth) ("the Act"), the solicitor for the respondent made an application to adjourn the hearing. The application was made in circumstances where the barrister retained to appear at the hearing, had two days earlier, advised he would not appear; the solicitor had attempted to brief several barristers but had been unable to secure anyone to appear; and he was unprepared to conduct the hearing.
2. The application was opposed. The primary judge refused the adjournment and directed the hearing proceed. The solicitor then sought leave to withdraw, which was refused. The primary judge said to the solicitor:

HER HONOUR: Thank you. I'm happy if you need to prepare some - because I appreciate you being caught off guard to some extent.

MR [JEREMY]: Absolutely your Honour

HER HONOUR: Yes.

MR [JEREMY]: And I can't give any assistance at all that's why I'm seeking leave to withdraw.

(Transcript 6 November 2025, p.7 line 43 to p.8 line 4)

HER HONOUR: And this is for your client's benefit, and I'm looking at him directly because he said - and you can take a seat, Mr [Jeremy]. What I see is the respondent's potential attempts to try and delay the trial. It will cause undue costs to the applicant - or to the wife, sorry. Even if I were minded to adjourn the trial, I suspect that the applicant will be asking for indemnity costs. So either way this goes, the respondent is not in a good position. He either gets a costs order of significant proportion, or the trial goes ahead, and a determination is made. So I will give you 15 minutes to prepare, perhaps get some instructions, and we will resume at 12 o'clock.

(Transcript 6 November 2025, p.8 lines 15-25)

1. It is clear from what the primary judge had said to that point in the hearing that she appreciated the solicitor had been "caught off guard to some extent" and that the options were that the hearing would proceed or a costs order would be made against the solicitor's client. It was not suggested at that stage that an order would be made against the solicitor.
2. The matter resumed after the short adjournment. Counsel for the applicant identified the documents relied on and called the applicant to give evidence, who was then sworn in. When cross-examination commenced, the solicitor said to the primary judge:

MR [JEREMY]: Your Honour, I submit with respect that I am not ready for the trial. I can't cross-examine the applicant.

HER HONOUR: I understand - Mr [Jeremy], we've been through this before - - -

MR [JEREMY]: Yes.

HER HONOUR: - - - in terms of the position you find yourself in. I've not acceded to your request to withdraw. You assisted your client or otherwise drafted the affidavit. You've read the affidavit. It's a matter for you if you wish to ask questions of the witness.

MR [JEREMY]: With respect, your Honour, I can say again, I'm not ready for the trial. If I knew how to do it. Your Honour, there's an affidavit of 200 pages of the applicant, more than 200 pages of the report writer. It will take the best part of the day to cross-examine just one person. And I'm not able to do that today.

HER HONOUR: Well what would you have me do, Mr [Jeremy]?

MR [JEREMY]: Your Honour, I was requesting for an adjournment. That's all I can do. I can't do anything else. I sought to withdraw.

HER HONOUR: But that adjournment has been opposed. I appreciate you've sought to withdraw and I have .... that leave. If you now press again for the adjournment, I will hear from [counsel for the respondent] as to whether I make a personal cost order against you.

(Transcript 6 November 2025, p.11 line 33 to p.12 line 12)

1. This was the first time in the hearing that any suggestion had been made of a personal costs order against the solicitor.
2. The solicitor responded:

MR [JEREMY]: It's not my fault, your Honour.

HER HONOUR: I appreciate that, but what would you have me do?

MR [JEREMY]: Your Honour, in my submissions, the best course of action would be to adjourn it to another date. I will have a barrister by that time. I've done everything in my power to find a barrister for the today's trial. I've known many barristers who I very often brief, none was available on short notice. You know, I can't do the trial by request. If I was able to, I would have done it.

HER HONOUR: I appreciate that, Mr [Jeremy], but you informed me you were admitted as a solicitor in - I think - 1993?

MR [JEREMY]: And I practised in [Country B] too for four years, but to come prepared for a trial, I was not today.

HER HONOUR: [Counsel for the respondent], I understand Mr [Jeremy] is re-enlivening his application to adjourn the trial. Do you wish to be heard on that?

[COUNSEL FOR THE RESPONDENT]: Yes, your Honour. I'm very sympathetic to Mr [Jeremy]. I understand the situation that he's in. And I accept he's trying to find a barrister, but there's literally hundreds of barristers in the Brisbane area. I wonder how diligently the check he made. The client has got some cost to be here today to run this trial, and it seems though it's not Mr [Jeremy's] fault, but there seems to be a lot of delay on the respondent's end. This is his fifth solicitor he's had now in the course of these proceedings. Any further delay, your Honour, as your Honour indicated, would take another potentially a year for him to have another property trial. If the matter is to be adjourned, your Honour, we would be pursuing costs. I mean, I wouldn't want to see Mr [Jeremy] pay, but I would need to see a cost order.

HER HONOUR: I'm going to stand down for 10 minutes while I consider your application. I must say, Mr [Jeremy], again, I understand, and it's not a criticism of you. I understand the position you're in, but I also understand you are a solicitor of this court. You have practised in this jurisdiction for some time on your own submission to the court, have you not?

MR [JEREMY]: Well, I have. Your Honour, if I knew I had to do the trial, I would have prepared it. I've done trials.

HER HONOUR: No, I understand, but you've had 48 hours since you - - -

MR [JEREMY]: Your Honour, there's 500 pages to read, 500 pages to cross-examine on. 500 pages, your Honour.

(Transcript 6 November 2025, p.12 line 14 to p.13 line 10)

1. The matter was briefly adjourned and when the hearing resumed, the primary judge said:

HER HONOUR: Thank you. I've considered your application to reopen the adjournment of the matter. Again, I'm not minded to grant that adjournment. I am extremely appreciative of the position that you find yourself in. So it is a case that the trial proceeds. If you tell me that you are unable to do so, as you told me prior, then I will consider a personal cost order against you for the costs thrown away today. Yes.

...

HER HONOUR: So that we are all abundantly clear for the record, you are a solicitor. I have not given you leave to be excused. You are a solicitor of significant experience. Take instructions from your client, ask some questions of the witness. If you choose not to, be very careful about the road that we go down.

MR [JEREMY]: I have sought instructions from him.

(Transcript 6 November 2025, p.13 line 40 to p.14 line 20)

1. The solicitor again advised the primary judge that he was unable to conduct the hearing and could not be of any assistance. The transcript records:

MR [JEREMY]: I'm not able to do it, your Honour. It's my inability. I'm not able to do it. I can't be of assistance to the court. I will never say that I'm not going to do what the court asked me to do.

HER HONOUR: [Counsel for the respondent]? In circumstances where as I understand, Mr [Jeremy's] position, I'm appreciative of his position - - -

[COUNSEL FOR THE RESPONDENT]: I know.

HER HONOUR: But I also - as I understand his position, he is effectively refusing to ask questions of the witness on behalf of his client.

[COUNSEL FOR THE RESPONDENT]: Yes, your Honour.

HER HONOUR: As such, he can be of no assistance, in which case I'm considering making a cost order personally against him for the costs thrown away today. And I will find an urgent date. In case the husband thinks that the delay will be long, it will not. Madam Associate - not Madam Associate, Madam Interpreter. What do you say the costs are thrown away today?

[COUNSEL FOR THE RESPONDENT]: Your Honour, my instructing solicitor's costs over three hours, your Honour, 495 an hour which is 1485. Cost figure for me was 4400, that's $5885.

(Transcript 6 November 2025, p.15 lines 19-44)

1. The primary judge then asked the solicitor whether he wished to be heard in relation to a costs order, to which he responded:

MR [JEREMY]: Your Honour, if it was my fault, I would accept it. It's not my fault. I've gone out of my way to make sure that it happens today. I rang quite a number of barristers.

(Transcript 6 November 2025, p.16 lines 18-20)

1. The primary judge delivered ex tempore reasons. The reasons comprise six paragraphs and relevantly record:
   1. The respondent's solicitor, Mr [Jeremy], seeks an adjournment of the trial due to the unavailability of counsel. In circumstances where the respondent has been non-compliant to various Orders made by this court, the application for an adjournment is opposed by the applicant wife to the substantive application.
   2. Where Mr [Jeremy] is a solicitor, with significant experience, having been admitted to practice since 1993 and drafted the respondent's material, the application for adjournment was not granted.
   3. After standing down for several minutes to allow Mr [Jeremy] to formulate questions to be put to the witness, Mr [Jeremy] informed the court that he was unable to do so. He was put on notice as to a potential costs order being made against him as he is an officer of the court and his duty is to assist the court.
   4. Notwithstanding that, he informed the court that he would not ask any questions of the witness, as he was unable to do so. Mr [Jeremy] informed the court that despite having two days to find alternate counsel, he made enquiries of only three barristers. The Bar has in excess of potentially 100 family law barristers, whether within the Brisbane locality or its surrounds.
   5. In the circumstances, the court is to make a costs order against Mr [Jeremy] personally, fixed in the sum of $5,885 and to be paid within 90 days. The trial will be adjourned to the earliest available date when the court resumes, which will be 16 January 2026.

1. The primary Judge erred at law by ordering the Appellant solicitor to personally pay the Wife's costs in circumstances where there was no failure, improper/unreasonable conduct, undue delay or default established on the Appellant's part. 2. The primary Judge erred at law by ordering the Appellant solicitor to personally pay the Wife's costs in circumstances amounting to a denial of natural justice the Appellant, namely:

(a) The Appellant was not given precise particulars of his allegedly unsatisfactory professional conduct, including the nature of any allegations made against him by the primary Judge. > > (b) The Appellant was not offered an adjournment or otherwise given any reasonable time to consider how he might usefully respond to the Primary Judge's oral proposal made without notice in open court that he should pay such costs. > > (c) The Appellant was not given any opportunity to mount a challenge to the quantum of costs to be ordered. > > (d) The primary Judge failed to give any reasons for making an order that the Appellant personally pay the Wife's costs

2. Ordinarily, and consistent with authority, where an appeal contends a denial of procedural fairness, then such ground must be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128). As their Honours observed in Crabman v Crabman (No 2) [2020] FamCAFC 146; (2020) 61 Fam LR 191:
   1. ... Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 611) ...

1. While s 114UB(1) of the Act provides that each party to the proceedings is to bear their own costs, it is well settled that s 114UB(2) is not limited to the parties and provides the Court power to make an order against non-parties, including a solicitor.
2. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") provide guidance on the circumstances in which an order for costs against a lawyer may be made. Apposite to this appeal, r 12.15 provides:

(1) The court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party or another person, or to be thrown away, because of:

(a) a failure to comply with these Rules or an order; or

(b) a failure to comply with a pre‑action procedure; or

(c) improper or unreasonable conduct; or

(d) undue delay or default.

(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:

(a) to attend, or send another person to attend, the hearing; or

(b) to file, lodge or deliver a document as required; or

(c) to prepare any proper evidence or information; or

(d) to do any other act necessary for the hearing to proceed.

1. The circumstances in which the Court may make such an order were conveniently summarised by the Full Court in Cassidy v Murray [1995] FamCA 91; (1995) FLC 92-633 ("Cassidy v Murray") at 82,365 in the following terms:
   1. Pursuant to s.117(2) Family Law Act, the Court has jurisdiction to make an order for costs against a solicitor or a non-party.
   2. The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
   3. The Court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
   4. The solicitor has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the solicitor's client.
   5. A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order.
   6. The jurisdiction is compensatory.
2. Their Honours went on to describe the requisite conduct at 82,366:

Almost any act done by a solicitor in connection with proceedings gives rise to costs, which are generally to be borne by one, some or all of the parties to proceedings - that is expected by parties who engage solicitors. Where those costs are appropriately incurred in the performance of a solicitor's responsibilities, the solicitor cannot fairly be called upon to meet them.

It is only when there is something relevantly inappropriate about the incurring of those costs that it will be proper to attach liability to the solicitor. It is for that reason that the conduct of the solicitor is called into issue. It is not that the Court seeks to punish the solicitor for his or her conduct...

In cases of this type, causation alone cannot be the test of whether a solicitor should be held liable for parties' expenses. Only the solicitor's improper conduct can provide a ground for the making of such an order against him or her. But the basis of the order is the concern that the innocent party should not bear costs which arise only out of the improper conduct of the solicitor, and not the improper conduct itself.

1. In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at [92] ("Lemoto"), the New South Wales Court of Appeal observed the following in relation to that Court's power to order a solicitor to pay costs:

(a) The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised "with care and discretion and only in clear cases": Ridehalgh (at 229), Re Bendeich [1994] FCA 1504; (1994) 53 FCR 422; Deputy Commissioner of Taxation v Levick [1999] FCA 1580 ; (1999) 168 ALR 383 per Hill J at [11]; Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 at [44]; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 at [8] per White J (with whom Davies and Williams JJA agreed); D_e Sousa v Minister for Immigration_ [1993] FCA 146; (1993) 41 FCR 544; Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286;

(b) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehalgh (at 233); Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at [56] per Lord Hobhouse; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 (affirmed on appeal, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773 ; (1999) 87 FCR 134); Levick v Deputy Commissioner of Taxation; cf Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157 ; [2003] 2 Qd R 683;

(c) the legal practitioner is not "the judge of the credibility of the witnesses or the validity of the argument": Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297; the legal practitioner is not "the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him": Myers v Elman (at 304, per Lord Atkin); Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 ; (2001) 47 ATR 1 at [34] per Callinan J;

(d) A judge considering making a wasted costs order arising out of an advocate's conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, a legal practitioner's conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order: Ridehalgh (at 236, 237);

(e) A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman (at 318); Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229);

(f) Where a legal practitioner's ability to rebut the complaint is hampered by the duty of confidentiality to the client he or she should be given the benefit of the doubt: Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229); in such circumstances "[t]he court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so": Medcalf (at [23] per Lord Bingham)

1. The dictates of a fair hearing that is compliant with the obligation to accord procedural fairness, requires a person to know the case they are asked to meet and have a reasonable opportunity to respond (Kioa v West (1985) 159 CLR 550). In the context of orders against a solicitor, this requires the solicitor be given "full and sufficient notice of the complaint and full and sufficient opportunity of answering it" (Lemoto at [92(e)]).
2. The order made against the solicitor was an order for indemnity costs. The authorities make plain that such an order is not made lightly, and that circumstances of an exceptional kind must exist to warrant costs being ordered on an indemnity basis (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340). In Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, Sheppard J identified various guidelines as to the circumstances in which a court might entertain an order for indemnity costs. The categories of cases in which a court may make an indemnity costs order are not closed and are not confined to those identified by Sheppard J (Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at 87,471).
3. A party applying for an indemnity costs order must inform the court of the existence of a costs agreement and the terms of that costs agreement (r 12.13(4) of the Rules).

1. The appellant submitted that he was denied procedural fairness. In that respect, in his Summary of Argument the appellant's counsel submitted:
   1. It cannot be said that the Appellant was given a reasonable opportunity to be heard in circumstances where the trial Judge:
      1. did not give him precise particulars of the conduct which was said to warrant an order against him, having regard to the terms of r 12.15;
      2. did not give him sufficient time and opportunity to consider how he might usefully respond to the generic allegations made orally in open Court;
      3. did not afford any opportunity for the Appellant to take legal advice about his position;
      4. did not afford any opportunity to file an affidavit in which he could plainly give evidence about the circumstances in which the barrister had returned the brief and who, in light of the Bar Rules, might be more appropriately burdened with an order for costs;
      5. did not afford any opportunity for the Appellant to challenge the quantum of costs sought, including on the basis that the trial was legally aided, or that scale costs were an alternative to an award based upon the commercial rates that might ordinarily be charged by the Wife's lawyers;
      6. failed to take into account the factors that might have weighed against the Appellant conducting the cross examination of a party, especially where a s102NA has been made.
2. On the issue of the conduct of the solicitor warranting an order for costs on an indemnity basis his counsel submitted:
   1. There was no compliance with r12.13 which required the Wife's lawyers to inform the Court of the terms of any costs agreement. No enquiry was made about the Wife's funding by Legal Aid Queensland or the impact of her having to account under s31 of the Legal Aid Queensland Act 1967 (Qld) for any costs awarded.
   2. No consideration was given to items 109 and 203 in Schedule 3 of the Rules which would have amounted to the lesser total of $1,751.89.

...

1. Ex tempore reasons were given. They were inadequate, but not as inadequate as the notice that was given to the Appellant of the precise basis upon which he had faced the prospect of a personal indemnity costs order.

2. No reference was made, in the short notice or the reasons that were given, to rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 which sets out when the Court can make an order for costs against a legal practitioner:

...

1. In the circumstances it is not at all clear what basis was relied upon in making an order for indemnity costs personally against the Appellant, all the more so in light of the expressed concessions by the trial Judge and counsel for the Wife that the need for the adjournment was not the fault of the Appellant.

...

1. The authorities in this jurisdiction recognise that personal costs orders against legal practitioners are only made in exceptional circumstances.

(As per the original)

1. The respondent contends that the requirements of procedural fairness were met. The respondent's Summary of Argument addressed the issue of procedural fairness as follows:

Was the Appellant not afforded the particulars of his 'alleged misconduct'?

41. The issues raised by Her Honour are clear throughout the transcript.

1. Her Honour even provides the following:

HER HONOUR: So that we are all abundantly clear for the record, you are a solicitor. I have not given you leave to be excused. You are a solicitor of significant experience. Take instructions from your client, ask some questions of the witness. If you choose not to, be very careful about the road that we go down.

Was procedural fairness denied by the failure to grant an adjournment or reasonable time to respond?

1. After Her Honour first intimated a personal costs order, the matter was stood down for 31 minutes, after which:

a. The Appellant was invited to make submissions.

1. The Appellant never asked or indicated that he needed an adjournment to address the issue of a personal costs order.
2. The Appellant did not indicate that he needed to receive legal advice.
3. The Appellant did not seek to challenge the quantum of the costs order.

Was there no opportunity to challenge the quantum?

1. A costs notice was filed on 5 November 2025. The quantum of costs was simple. [Counsel for the respondent's] daily fee and three hours of his solicitor's fee; the thrown away costs of the day.

2. The $5,885 cost order is a relatively modest amount. Her Honour's discretion was appropriate pursuant to r12.17(3)(c) where the calculation of a costs order may consider 'the rates ordinarily payable to lawyers in comparable proceedings'.

3. There is no evidence which shows the Appellant was denied the opportunity to challenge quantum.

Was there reasonable opportunity to be heard?

1. The Appellant was given a reasonable opportunity to be heard pursuant to r 12.16 because:

a. He was alive to the issues throughout the day.

b. He had ample time to consider what Her Honour intimated.

c. Her Honour invited him to make submissions.

1. He raised no concern insofar as his ability to respond to these issues at the time.

1. On the issue of conduct said to warrant an indemnity costs order, counsel for the respondent submitted:
   1. The Appellant's impugned conduct is two-fold: failure to prepare for trial and/or to make proper attempts to brief counsel.

...

1. Rule 12.15 confers a straight-forward discretionary power: a judge may make an order for costs against a lawyer, if the lawyer has caused costs to be thrown away because of unreasonable conduct, undue delay or default.

2. It follows that a lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed to 'do any other act necessary for the hearing to proceed'.

...

1. The Appellant should have known that he would have to conduct the trial if he was unable to brief counsel.

2. A practitioner cannot attend court with the expectation that leave to adjourn or to withdraw would be granted. All practitioners should prepare for trial as a contingency.

3. Having regard to the order of 14 July 2025 and the procedural history of delay, the Appellant knew, or ought to have known, in the days leading up to the hearing that, if counsel were not briefed, the matter would proceed and expose him to the obvious consequences of that course.

...

1. Her Honour's discretion under r 12.15 was properly exercised, when considered by the following questions:

a. What was the reason the trial could not proceed?

i. The Appellant was not prepared to conduct the trial.

c. What were the consequences to the trial not proceeding?

i. The Respondent was unable to have finality to her case and suffered thrown away costs.

i. A costs order.

1. The Appellant's conduct enlivened rl2.15 and, in all the circumstances, Her Honour's decision fell within the permissible range of discretionary outcomes to ameliorate the prejudice suffered by the applicant.

1. For the Court to make an indemnity costs order against the solicitor, it was required to:

(a) be satisfied that the conduct of the solicitor was not because of some mistake or error of judgement on the part of the solicitor.

(b) be satisfied that a "clear case" existed for finding that the solicitors conduct fell so far short of his professional obligations as to amount to "improper conduct" or "misconduct."

(c) ensure that full and sufficient notice of the alleged "improper conduct" or "misconduct" was provided to the solicitor.

(d) ensure that the solicitor had an opportunity to be heard.

(e) recognise, in making an order for cost on an indemnity basis, that such an order should be made only where the circumstances were of an exceptional kind and represented a departure from the Act and from an order for party/party costs.

(f) provide reasons that adequately explained why the order was made and the basis for the order.

1. This did not happen.
2. I do not accept the submissions of the respondent. I am satisfied that the appellant has established error in the terms of Grounds 1 and 2 for the following reasons:

(a) The unchallenged evidence establishes that the circumstances in which the solicitor found himself before the primary judge were not entirely of his making. The solicitor was notified by counsel only two days before the hearing that he would not be appearing. The solicitor attempted to secure alternative counsel. The volume of material requiring review to prepare for the hearing was extensive. The solicitor frankly, and to his credit, conceded he had not prepared the case such that he would be able to conduct the hearing.

(b) The 23‑minute adjournment provided by the primary judge to prepare for cross‑examination amounted, in substance, to no real opportunity at all, given the breadth of the material relied upon in the applicant's case, which included a 198‑page affidavit of the applicant, an affidavit in reply and a 299‑page single expert accountant's affidavit filed the day before the hearing.

(c) The adjournment was sought in the context where the primary judge had advised that if the hearing did not go ahead that it was the solicitor's client who would "get a costs order of significant proportion" (Transcript 6 November 2025, p.8 lines 22-23). No explanation was provided for the departure from this view.

(d) Whilst the primary judge's obvious frustration with the consequences of the hearing not proceeding may be understandable the prior conduct of the solicitor's client had no bearing on whether the solicitor's conduct could be described as either improper conduct or as misconduct (at [2]).

(e) Whilst counsel for the applicant and the primary judge observed that there were more than 100 family law barristers in Brisbane and surrounding areas, there was no evidence that any were available or willing to accept a brief on such short notice. The respondent's submission that the solicitor had not made proper attempts to brief alternate counsel is without foundation.

(f) The observation that the solicitor had over 30 years' experience as a lawyer did not establish that he possessed the necessary skill or experience to conduct a cross-examination especially in circumstances where he was given 23 minutes to prepare. A divided profession exists for sound and good reasons.

(g) The respondent's submissions that the solicitor should have known he would be required to if alternate counsel could not be obtained and, that the solicitor failed to prepare for the hearing, does not make "full allowance" for all the circumstances (Lemoto at [92(d)]), including the breadth of material, the late withdrawal of counsel and the solicitor's attempts to secure alternate counsel in the limited time that remained.

(h) There was no evidence upon which the primary judge could conclude that a "clear case" existed for finding the solicitor's conduct amounted to "improper conduct" or "misconduct" and no such finding was made. The solicitor's conduct could not meet the requirement of r 12.15 of the Rules. Justice Austin in Geels & Lukeson [2024] FedCFamC1A 119; (2024) FLC 94-199 ("Geels") described the application of the Rule in the following terms:

1. ...Generally speaking, that rule is only meant to capture clear cases of delinquent conduct which is incompatible with satisfactory professional performance (Beamish & Coburn (dec'd) [2021] FamCAFC 20; (2021) FLC 94-005 at [7]; Z (a solicitor) & Limousin [2010] FamCAFC 59; (2010) FLC 93-433 at [45]-[62]; Lemoto at [92])...

(i) Procedural fairness is a fundamental requirement of the judicial process. In the context of a costs order, it is in part enshrined in r 12.16 of the Rules. In this instance, it required the solicitor to be given full and sufficient notice of the aspects and features of his conduct that were said to fall short of that expected with a sufficient opportunity to respond.

(j) At no point was the solicitor advised of the specific aspects of his conduct said to warrant consideration of a costs order against him, particularly in circumstances where the primary judge departed from an earlier held position that, if an adjournment were sought, an order would be made against the party for whom he appeared for rather than against the solicitor. Counsel for the respondent properly conceded that at no time did the primary judge inform the solicitor of what aspect of his conduct was either improper or amounted to misconduct.

(k) The contention that the solicitor's conduct amounted to improper conduct or misconduct was inconsistent with statements made by the primary judge. When advised that the solicitor was not ready to cross examine and could not do so that day, the primary judge asked, "Well what would you have me do?" (Transcript 6 November 2025, p.12 line 4). When the solicitor said that it was not his fault, the primary judge responded, "I appreciative that but what would you have me do" (Transcript 6 November 2025, p.12 line 16). Later, the primary judge said, "...I must say Mr [Jeremy] again I understand and it's not a criticism of you. I understand the position you're in ..." (Transcript 6 November 2025, p.12 line 45-46). These statements are inconsistent with the proposition that any conduct of the solicitor met the description of improper conduct or misconduct, and they are also inconsistent with the provision of the requisite notice.

(l) This was not a "clear case" warranting the making of a costs order against the solicitor (Lemoto at [92(a)]).

(m) No submissions were advanced as to why an indemnity costs order should be made, and no costs agreement was tendered that might have provided a basis for such an order. There was a failure on the part of the applicant to comply with r 12.13(4) of the Rules.

(n) The solicitor was not provided with the basis on which an indemnity costs order was made and not afforded the opportunity to consider the reasonableness or otherwise of the amount sought.

(o) The primary judge's reasons were delivered ex tempore and due allowance is made for that fact (Maviglia v Maviglia [1999] NSWCA 188). The reasons, however, should still clearly reveal the basis upon which the decision was made so that justice is seen to have been done (Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8) which would include addressing in some way the provisions of rr 12.13, 12.15 or 12.16 of the Rules. This did not occur.

(p) The reasons do not address why there should be a departure from the provisions of s 114UB(1) of the Act, or a departure from sch 3 of the Rules, nor do they explain why the circumstances were of such an exceptional kind as to warrant an order for indemnity costs.

1. The appeal will be allowed, and Order 3 made on 6 November 2025 will be set aside.

1. In the event the appeal was allowed, the respondent sought that the Court re-exercise its discretion to determine the respondent's oral application for indemnity costs.
2. On the re-exercise, no party sought to adduce any further evidence and otherwise relied on the submissions made in the appeal, both in support of the making of the order and, conversely, as to why an order should not be made.
3. The evidence referred to earlier demonstrates that the solicitor was advised two days before the hearing that counsel previously briefed would not appear. He thereafter made attempts to obtain alternate counsel and could not find any. There is no evidence that there was other counsel available to accept a brief. The solicitor had obligations to the Court and to his client. Given the extensive material required to be read to prepare for the hearing and the time available to the solicitor, he conceded he could not conduct the hearing that day.
4. No aspect of the solicitor's conduct in seeking an adjournment and upon being advised that an adjournment was refused, advising the Court that he was unable to cross examine, could be described as improper or as misconduct. It was, to the contrary, entirely consistent with his obligation to his client and to the Court. Rule 12.15 of the Rules had no application (Geels).
5. The consequence of the above is the oral application for costs will be dismissed.

1. In circumstances where the appeal has succeeded on a question of law, it is appropriate to order a costs certificate.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.