Pandey v Dr Tiffany Tam Pty Ltd

A few days before the conference, Mr Pandey obtained a medical certificate saying he had a medical condition and should be exempted from attending legal proceedings for six weeks. His then solicitor sought an adjournment. The respondents opposed that course and said the conference should still proceed without Mr Pandey personally attending. Material supporting the adjournment request was sent to the Court, including the medical certificate and affidavit material from the solicitor.

Judicial Registrar Birchall decided not to vacate the conference. The conference then went ahead by Microsoft Teams. Mr Pandey did not attend personally, but his solicitor did. No resolution was reached at the conference. After that, Mr Pandey personally emailed the Registry objecting to the conference having been held and forwarding the supporting material again. Those objection documents were refused for filing.

Mr Pandey then started a separate judicial review proceeding in the Federal Court. He argued, in substance, that the process had been unfair because the conference was held despite his medical evidence, in his absence, and because his later objection documents were not accepted for filing. The respondents responded with an application for summary judgment, saying the judicial review case had no reasonable prospect of success.

So the Court was not deciding the underlying merits of the earlier commercial dispute. It was deciding whether there was any reviewable legal error in the way the Judicial Registrar handled this stage of the costs-taxation process.

The Court also had to look closely at the structure of Part 40 of the Federal Court Rules. That mattered because the significance of the conference depended on what role it played in the taxation process. The Rules provide that, after a notice of objection to the estimate is received, a Registrar may direct one of several paths: a confidential conference, a provisional taxation, or that the taxation proceed. If a conference resolves the dispute, a certificate of taxation can issue for the agreed amount.

But if no resolution is reached, the process continues and the party served with the bill can still object to particular items before a certificate of taxation is ultimately issued.

That procedural structure was critical. If the conference was only an intermediate step, then the applicant needed to show some real practical unfairness from it being held in his absence. If the process still gave him a later opportunity to contest the bill, that would weigh heavily against any claim of jurisdictional error.

The Court then turned to the more substantial complaint, namely whether holding the conference in the applicant's absence was procedurally unfair. The Court emphasised that fairness is practical, not abstract. It relied on the High Court's statement in Ex parte Lam that the concern of the law is to avoid practical injustice.

On the facts, the Court found no practical injustice. A confidential conference under Part 40 is not an inevitable or always decisive step. It is only one of the options available after an objection to the estimate. More importantly, where a conference does not resolve the dispute, the taxation process continues. The party served with the bill can still object to items in the bill before a certificate of taxation is issued.

Because no resolution was reached at the conference here, the applicant still had a pathway to contest the bill later in the process.

The Court also placed weight on representation. Mr McFadyen, the applicant's then solicitor, attended the conference. He had filed the earlier objection to the estimate and could reasonably be taken to be familiar with the matter. The Court considered it a reasonable inference that he was in a position to represent the applicant's interests, especially because the issues concerned items in a bill of costs, which are more likely to fall within a solicitor's expertise than a client's personal knowledge.

The Court further inferred from the applicant's own attempts to email material to the Registry on 29 and 31 May 2025 that he was capable of giving instructions to his solicitor at the relevant time, even if he was not able to attend the conference personally. Taken together, those matters meant the applicant had a fair opportunity, and a real practical opportunity, to participate in the court-supervised process through his solicitor.

Once that conclusion was reached, the third complaint also failed. The Court said that if there was no jurisdictional error in holding the conference, there was no basis for requiring the later objection documents to be accepted for filing. It also rejected the suggestion that the applicant had been left without an effective remedy, because there was nothing preventing him from participating in the balance of the taxation process.

The Court therefore entered summary judgment for the respondents and ordered the applicant to pay the respondents' costs on a party-party basis, with those costs to be determined in a lump sum. The Court did not make an indemnity costs order on the material available in the reasons.

The case also shows the practical importance of legal representation. The Court was not persuaded that personal absence automatically meant unfairness where the solicitor attended and could represent the client's interests. For a business, that means internal assumptions such as 'the director must be there or the process is invalid' may be wrong. If your solicitor has the file, knows the objections, and can appear, the Court may regard that as a meaningful opportunity to participate.

Another practical point is evidence and timing. If illness, travel, operational disruption or another issue affects attendance, raise it promptly and support it properly. But even strong evidence of a genuine problem does not guarantee an adjournment. The Court will still ask what prejudice actually followed, whether the material was considered, whether representation was available, and whether the process still leaves room for later objections.

Finally, there is a costs warning. The respondents not only defeated the judicial review application, they obtained summary judgment and a costs order, with a lump sum costs process. For a business already facing a bill of costs, a weak procedural challenge can become an expensive side dispute. Before starting a separate review application, get advice on whether the complaint is really about jurisdictional error, or whether it is better dealt with inside the existing taxation process.

This is especially important because the Court did not say the applicant was barred from continuing in the taxation process. It said the opposite. So from a commercial perspective, the failed judicial review application risked adding cost and delay without changing the business's practical position on the underlying bill.

Secondly, the Court relied on the notification that the Judicial Registrar had taken the affidavit and party emails into account before deciding not to vacate the conference. That directly answered the complaint that the medical material had not been considered.

Thirdly, the Court drew inferences from conduct. The applicant's own attempts to send material to the Registry suggested he was capable of engaging with the process and, at least, giving instructions. The solicitor's attendance suggested the applicant was not left without representation. Those factual inferences were central to the Court's conclusion that there had been no practical injustice.