By Craig Nicol and Keleigh Robinson
In Jeremy & Taklit [2026] FedCFamC1A 32 (5 March 2026) Schonell J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal by a solicitor who was ordered by Judge Jacobs to pay indemnity costs of $5,885 in respect of an adjourned property trial.
The solicitor appeared on the first day of trial and sought an adjournment as, two days earlier, counsel who was scheduled to appear advised that he would not appear. The Court refused to grant an adjournment. The solicitor then sought leave to withdraw, which was also refused ([5]). The Court adjourned the trial but ordered the solicitor to pay indemnity costs.
The Court said (from [30]):
“… [T]he appellant has established error … for the following reasons:
(a) … 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 …
(b) The 23‑minute adjournment provided by the primary judge to prepare for cross‑examination amounted … to no real opportunity at all …
(c) … [T]he 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’… ( … )
(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 … ( … )
(h) There was no evidence … that a ‘clear case’ existed for finding the solicitor’s conduct amounted to ‘improper conduct’ or ‘misconduct’ and no such finding was made… ( … )
(p) The reasons do not address why there should be a departure from … s 114UB(1) of the Act, or … 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.”
