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A principal solicitor has overturned a personal costs order for a thrown-away case management hearing after his employee was prevented from lodging an appearance, apparently put off by the over-eager submissions of other lawyers in the courtroom.
Justices Michael Jarrett, Bruce Smith and Juliet Behrens of the Federal Circuit and Family Court of Australia (FCFCOA) (Division 1) have overturned an order of Justice Penelope Kari that a lawyer personally pay the costs thrown away by the adjournment of a case management hearing that was due to occur in January 2026.
Apparently, “excited” to learn the lawyer – whose identity was anonymised – had instructed his newly admitted employed practitioner to appear on his behalf, an independent children’s lawyer (ICL), an opposing lawyer, and a third lawyer appearing as “friend of the court” told Justice Kari the employee could not appear due to supervisory conditions on their practising certificate.
Presumably because of these interventions, the employee did not announce their appearance. Even if they had, the full court bench said it was unlikely Justice Kari would have accepted it.
Having placed a great deal of weight on the lawyer’s absence from the courtroom, Justice Kari made the personal costs orders and referred the conduct to the South Australian Legal Profession Conduct Commissioner and the Director of the Commission.
Justices Jarrett, Smith, and Behrens found Justice Kari was “led into error” by the “unhelpful interventions” of the three other lawyers.
The full bench found the employed solicitor was entitled to practise in the Supreme Court of South Australia, and he had a right to appear before the FCFCOA, either in Division 1 or Division 2.
There was nothing in the evidence to suggest Justice Kari should have been concerned about the employed solicitor’s compliance with the terms of their practising certificate.
Likewise, there was no evidence that went to the nature and extent of the supervision rendered by the lawyer to his employee.
Given there was no basis for Justice Kari to have refused the appearance of the employed practitioner, it was not appropriate to find the lawyer had “unreasonably failed to attend, or send another person to attend, the hearing” to represent his client.
“The fact that the employed practitioner did not attempt to announce his appearance following the interventions by counsel for the ICL and the intervening counsel is not conduct warranting a costs order against the appellant,” the full bench said.
“We are not satisfied that there has otherwise been ‘improper or unreasonable conduct’ on the part of the appellant, warranting the making of a personal costs order against him.”
Unlike the personal costs order, the referral cannot be appealed.
“It will be for the relevant authorities to determine what response, if any, will be taken in relation to the respective referrals,” the court said.
Citation: Palacio & Ksenia [2026] FedCFamC1A 156.
