Thompson v Ellis (No 2)
[2025] FCA 649
•19 June 2025
FEDERAL COURT OF AUSTRALIA
Thompson v Ellis (No 2) [2025] FCA 649
Appeal from: Applications for extension of time and leave to appeal: Thompson v Ellis [2024] FCA 1200 File number: QUD 699 of 2024 Judgment of: VANDONGEN J Date of judgment: 19 June 2025 Catchwords: PRACTICE AND PROCEDURE - applications for extensions of time within which to seek leave to appeal against orders made in a review conducted under s 35A of the Federal Court of Australia Act 1976 (Cth) of two lump sum costs assessments made by a registrar - whether proposed grounds of appeal have reasonable prospects of success - whether application incompetent - applications dismissed Legislation: Bankruptcy Act 1966 (Cth) s 153B
Federal Court of Australia Act 1976 (Cth) ss 24, 25, 33, 35A
Federal Court (Bankruptcy) Rules 2016 (Cth) rr 2.02, 13.01, Schedule 1 item 13
Federal Court Rules 2011 (Cth) rr 3.01, 35.12, 35.13, 35.14, 39.05, 40.02, 40.06, Schedule 1, Schedule 2 item 220
Body Corporate and Community Management Act 1997 (Qld) ss 94, 100
Legal Profession Act 2007 (Qld) ss 308, 315, 319, 340, 341
Australian Solicitors Conduct Rules 2012 (Qld) rr 3, 5, 19
Uniform Civil Procedure Rules 1999 (Qld) Chapter 8
Legal Profession Regulation 2017 (Qld) reg 69
Cases cited: AIX20 v Director-General of Security [2025] FCAFC 38
AZO24 v Commonwealth of Australia [2025] FCAFC 77
Bienstein v Bienstein [2003] HCA 7
Bingham v Boensch [2023] FCA 117
Caratti v Commissioner of the Australian Federal Police [2021] FCA 1067
FJE20 v Minister for Home Affairs [2022] FCAFC 45
Frigger v Trenfield(No 12) [2022] FCA 900
Frigger v Banning(No 13) [2023] FCA 923
GrayvLavan [2024] WASCA 147
Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600
Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; (2023) 299 FCR 244
Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90
Marsh v Baxter [No 2] [2016] WASCA 51
Natch v Stennson Pty Ltd(No 2) [2024] FCA 1498
Oil Basins Limited v Watson [2017] FCAFC 103; (2017) 252 FCR 420
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541
Thompson v Lane (Trustee) (No 3) [2022] FCA 128
Thompson v Lane (Trustee) (No 4) [2022] FCA 616
Thompson v Lane (Trustee) (Costs) [2023] FCA 568
Thompson v Lane (Trustee) [2023] FCAFC 32
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 57 Date of hearing: 28 April, 11 and 13 June 2025 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: The respondent filed a submitting notice save as to costs ORDERS
QUD 699 of 2024 BETWEEN: EMMA NARELLE CATHRYN THOMPSON
Appellant
REGISTRAR ELLIS
Respondent
ORDER MADE BY:
VANDONGEN J
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The appellant's application to adjourn her application for leave to appeal from the orders in QUD 419/2023 pending the hearing and determination of an unfiled originating application dated 15 May 2025 seeking orders pursuant to r 39.05 of the Federal Court Rules 2011 (Cth) is refused.
2.The appellant's application for leave to appeal from the orders in QUD 419/2023 is adjourned until not before 10.15 am AWST on Friday 13 June 2025.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 699 of 2024 BETWEEN: EMMA NARELLE CATHRYN THOMPSON
Appellant
AND: REGISTRAR ELLIS
Respondent
ORDER MADE BY:
VANDONGEN J
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal against the orders made in QUD 419/2023 is dismissed.
2.The application for an extension of time within which to appeal against the orders made in QUD 420/2023 is dismissed.
[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]
REASONS FOR JUDGMENT
VANDONGEN J:
The applicant, Emma Thompson, wishes to appeal against orders that were made in two proceedings: QUD 419 of 2023 (QUD 419) and QUD 420 of 2023 (QUD 420).
In both of those proceedings, which were dealt with concurrently, Ms Thompson sought judicial review of two separate lump sum costs assessments made by a registrar of this Court. The registrar carried out one of those assessments in the exercise of delegated powers, pursuant to orders made by Logan J in Thompson v Lane (Trustee) (No 4) [2022] FCA 616 (Thompson No 4), following his Honour's decision to dismiss Ms Thompson's application for an order that her bankruptcy be annulled: Thompson v Lane (Trustee) (No 3) [2022] FCA 128 (Thompson No 3).
The registrar also carried out the other assessment in the exercise of delegated powers, but in accordance with orders made by Goodman J in Thompson v Lane (Trustee) (Costs) [2023] FCA 568 (Thompson (Costs)), following Ms Thompson's unsuccessful appeal against the orders that were made in Thompson No 3: Thompson v Lane (Trustee) [2023] FCAFC 32 (Thompson Appeal).
Favourably to Ms Thompson, the primary judge in QUD 419 and QUD 420 decided to deal with both of Ms Thompson's applications for judicial review on the basis that what was in fact sought was a de novo review of the registrar's exercise of delegated powers under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
After carrying out those reviews, the primary judge set aside the registrar's assessments. In QUD 419, which was concerned with the costs assessment made in connection with Thompson No 4, the primary judge ordered that the costs payable to the first respondent were to be fixed in the sum of $50,262.91, and that those payable to the second respondent were to be fixed in the sum of $52,451.00: Thompson v Ellis [2024] FCA 1200 (Thompson v Ellis) at [63]. In QUD 420, which concerned the costs assessment made pursuant to the orders made in Thompson (Costs), the primary judge made an order that the costs payable to the second respondent were to be fixed in the sum of $44,202.00: Thompson v Ellis at [64].
After orders were made in Thompson v Ellis, Ms Thompson lodged a single notice of appeal in which she sought to challenge all of the primary judge's orders in QUD 419 and QUD 420. As the orders Ms Thompson seeks to appeal against are costs orders, leave to appeal is required: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; (2023) 299 FCR 244 (Harvard Nominees) at [13]; citing Caratti v Commissioner of the Australian Federal Police [2021] FCA 1067 at [11]‑[12]. However, Ms Thompson did not file any application for leave to appeal, as required by r 35.12 of the Federal Court Rules 2011 (Cth) (Rules).
An extension of time within which to seek leave to appeal is also required because no application for leave to appeal was filed within 14 days after the date on which the primary judge made orders: r 35.13(a) and r 35.14 of the Rules. However, Ms Thompson did not file any application for an extension of time to seek leave to appeal.
Notwithstanding those procedural deficiencies, I will proceed as if Ms Thompson has made the necessary applications. Pursuant to s 25(2)(a) and s 25(2)(b) of the FCA Act, those applications must be heard and determined by a single judge.
At the commencement of the hearing of her applications, Ms Thompson made an oral application to adjourn the hearing. Ms Thompson sought an adjournment pending the hearing and determination of an originating application she says she has attempted to file, in which she sought orders pursuant to r 39.05 of the Rules, to vary or set aside the orders made in Thompson No 3. Presumably, if her originating application is accepted for filing, Ms Thompson intends applying to vary the order made in Thompson No 3 that her application to annul her bankruptcy be dismissed. It appears that Ms Thompson wishes to argue that the judgment and orders in Thompson No 3 were obtained by fraud: r 39.05(b) of the Rules.
I refused Ms Thompson's application for an adjournment. There was nothing to suggest that Ms Thompson would be unfairly prejudiced if an adjournment was not granted. Further, there was no basis on which to conclude that the merits of Ms Thompson's application for an extension of time within which to seek leave to appeal might in any way be affected by the outcome of what was then just a potential application to seek a variation of orders made in Thompson No 3.
I would refuse to grant Ms Thompson an extension of time within which to seek leave to appeal against the orders made by the primary judge in both QUD 419 and QUD 420. Before explaining why I have reached that conclusion, it is convenient to set out some further background to Ms Thompson's attempts to appeal against the primary judge's review of the registrar's costs assessments.
Background
After presenting a debtor's petition to the Official Receiver on 26 June 2020, Ms Thompson became a bankrupt on 1 July 2020. Almost a year later, Ms Thompson applied for an order that her bankruptcy be annulled pursuant to s 153B(1) and s 153B(2) of the Bankruptcy Act 1966 (Cth). However, that application failed in Thompson No 3. Costs orders were subsequently made by Logan J, including orders that the respondents' costs be paid out of Ms Thompson's bankrupt estate and that those costs be fixed by a registrar on a lump-sum basis: Thompson No 4.
A registrar later ordered that the costs payable to the first respondent in Thompson No 3 were to be fixed in the sum of $44,975.98, and that the costs payable to the second respondent in those proceedings were to be fixed in the sum of $45,195.12.
Ms Thompson unsuccessfully appealed the orders in Thompson No 3: Thompson Appeal. When that appeal was dismissed, an order was made that Ms Thompson pay the respondents' costs of the appeal. However, the Full Court subsequently ordered that an application that was later made by the respondents for further orders as to the costs of the appeal be heard and determined by a single judge. That task was assigned to Goodman J, who was one of the judges who formed part of the coram that heard the appeal.
Later, Goodman J made orders in Thompson (Costs), that the second respondent's costs of the appeal be paid out of Ms Thompson's bankrupt estate in a lump sum. Those orders also provided that the quantum of costs was to be determined by a registrar of the Court, and that upon making such a determination, the registrar was to make an order fixing the amount of costs.
Pursuant to the orders made by Goodman J, the registrar ultimately determined that the costs payable to the second respondent in the appeal were to be fixed in the sum of $40,087.65.
As I have already said, in QUD 419 and QUD 420, Ms Thompson sought judicial review of each of the registrar's decisions. However, the primary judge decided that Ms Thompson's applications for judicial review should be treated as if they were applications made pursuant to s 35A(5) of the FCA Act, in which a de novo review of the registrar's exercise of delegated power was sought.
After conducting those reviews, the primary judge set aside the registrar's orders, and then made the orders referred to at [5] of these reasons. It is against those orders in QUD 419 and QUD 420 that Ms Thompson now seeks an extension of time within which to seek leave to appeal.
In support of her applications for extensions of time within which to seek leave to appeal, Ms Thompson relies on an unfiled affidavit sworn by her on 22 May 2025. She also relies on a further affidavit sworn by her on 17 March 2025, which has also not been filed, but which appears to have been filed in proceedings in the District Court of Queensland. It is unnecessary to summarise the contents of either of those affidavits.
Relevant general legal principles
When considering whether to grant an extension of time, relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice that arises from the grant of an extension and the merits of the proposed substantive application: AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [35] (Raper J, Wigney and Lee JJ agreeing). Leave to appeal will generally be refused unless the applicant for leave establishes that: (a) the decision giving rise to the orders is attended by sufficient doubt to warrant it being considered by a Full Court; and (b) substantial injustice would result if leave were refused. These considerations are cumulative and leave to appeal will not be granted unless each limb of the test is made out: AIX20 v Director-General of Security [2025] FCAFC 38 at [13]; see also Bienstein v Bienstein [2003] HCA 7 at [29].
It is clear, therefore, that neither an extension of time nor leave to appeal will be granted if there are no reasonable prospects of success: FJE20 v Minister for Home Affairs [2022] FCAFC 45 at [9].
QUD 419 of 2023
In my view, none of the proposed grounds of appeal against the orders in QUD 419 have any reasonable prospects of success. It follows that the relevant application for an extension of time within which to seek leave to appeal must be refused.
None of Ms Thompson's proposed grounds of appeal grapple with the need to demonstrate error in the exercise of the primary judge's discretion in making a de novo determination of the appropriate quantum of the relevant lump sum costs orders.
In proposed grounds 1(a)-1(d), Ms Thompson contends, for various reasons, that the primary judge 'failed to identify' that there was no valid basis on which a costs order could be made, or on which costs could be claimed. A common theme in all of these proposed grounds of appeal is that there was 'no valid costs agreement' between the respondents in Thompson No 3 and each of their solicitors. In that respect, proposed ground 1(a) specifically alleges that the respondents' solicitors each failed to comply with:
(a)sections 308, 315, 340 and 341 of the Legal Profession Act 2007 (Qld) and reg 69 of the Legal Profession Regulation 2017 (Qld), which are concerned with costs disclosure and with the assessment of costs as between lawyer and client;
(b)rules 3, 5 and 19 of the Australian Solicitors Conduct Rules 2012 (Qld), which are concerned with a solicitor's paramount duty to the court, the duty not to engage in dishonest and disreputable conduct, and the duty of frankness in court;
(c)provisions in Chapter 8 of the Uniform Civil Procedure Rules 1999 (Qld), which are concerned with the preservation of rights and property;
(d)rule 40.06 of the Rules, under which a party may apply for an order that costs have been improperly, unreasonably or negligently incurred be disallowed; and
(e)the Dictionary meaning of 'costs as between party and party' that appears in Schedule 1 of the Rules.
In proposed ground 1(e), Ms Thompson contends that the primary judge 'failed to identify' that the proceedings in Thompson No 3 were 'absent jurisdiction and the legal costs [were] invalidly claimed'. In proposed ground 1(f), she argues that the primary judge 'failed to identify' that there is no 'exhibited evidence of any payment' made by the second respondent in Thompson No 3 for the legal costs claimed.
Proposed ground 1(g) contains an assertion that the primary judge 'failed to identify' that there was 'no valid basis' for the second respondent in Thompson No 3 to be represented by its solicitors.
In proposed ground 2, Ms Thompson says that the primary judge 'failed to identify' that the decision in Bingham v Boensch [2023] FCA 117 (Bingham) confirmed that an agreement about the payment of legal costs is a prerequisite for the payment of legal costs and that there was no evidence of such an agreement between the second respondent and its lawyers.
Finally, in proposed ground 3, Ms Thompson contends that decisions of both the primary judge and the registrar amount to 'a breach of the rules of costs law' and are 'a denial of natural justice and procedural fairness'.
In support of those proposed grounds of appeal, Ms Thompson relies on two sets of written submissions, supplemented by her oral submissions. However, none of those submissions address the proposed grounds of appeal. Instead, and despite the result in the Thompson Appeal, Ms Thompson's submissions attack the result in Thompson No 3 and contend that the orders made in that case 'must be set aside'. Clearly, those submissions cannot be entertained. The primary judge, whose orders are the subject of Ms Thompson's proposed grounds of appeal, was required to conduct the review under s 35A(6) of the FCA Act on the basis that the orders made in Thompson No 3 were not and could not be called into question in that review.
Many of Ms Thompson's contentions in proposed ground 1 amount to an argument that the primary judge erred in 'failing to identify' that there was 'no valid basis' for 'a costs order to be made'. Further, at the hearing of her application for an extension of time, Ms Thompson submitted that the order made by Logan J in Thompson No 4 that the respondents' costs be paid out of her bankrupt estate should not have been made. However, Ms Thompson cannot challenge that order in her application for an extension of time to seek leave to appeal. That application is concerned only with the orders that were made by the primary judge in QUD 419. Accordingly, to the extent that the proposed grounds seek to advance this argument, they have no reasonable prospects of success.
As I have already said, a common theme emerges from the first proposed ground of appeal. This is an argument that there was 'no valid basis for costs to be claimed' because there was no 'valid costs agreement' between each of the respondents in Thompson No 3 and their respective solicitors. As Ms Thompson explained at the hearing of her application for an extension of time, her contention is that if there were no valid costs agreements between the respondents in Thompson No 3 and their respective legal representatives, then there was no basis on which the primary judge in QUD 419 could have properly assessed the lump sum costs payable to each respondent. In support of that contention, Ms Thompson relies on the various legislative provisions to which I have referred at [24] of these reasons. She also relies on two solicitors' letters that are annexed to her unfiled affidavit sworn on 22 May 2025.
Ms Thompson's contentions appear to amount to an argument that the primary judge failed to find that the 'indemnity principle' was not satisfied when she carried out the de novo review in QUD 419. That principle was explained by O'Bryan J in Natch v Stennson Pty Ltd(No 2) [2024] FCA 1498 (Natch) at [51] as follows:
An order for costs against an unsuccessful litigant aims to provide the successful party with some level of indemnity for the legal costs the successful party would not have incurred had it not been necessary to uphold his or her rights in court. Such a costs order does not entitle the successful party to recover more than they have paid or are liable to pay to their own lawyer, and this forms the basis of the indemnity principle - that a party ordered to pay any other party's costs is obliged to pay only those costs which the other party is legally obliged to pay to their lawyers.
(citations omitted; emphasis added)
In Frigger v Banning(No 13) [2023] FCA 923, Colvin J concluded that when assessing costs as between party and party, a registrar of this Court has authority to determine whether the indemnity principle has been satisfied (see also Natch; and Harvard Nominees). Accordingly, I will proceed on the basis that the primary judge was required to consider whether the indemnity principle had been met in the event that it was raised in the de novo review of the registrar's assessment in QUD 419.
On the highly questionable assumption that the premise of Ms Thompson's argument is established on the admissible evidence before me, namely, that there were no relevant valid costs agreements, I do not accept that the primary judge erred by, in effect, failing to conclude that the indemnity principle was not satisfied. That is so for at least two reasons.
Firstly, and as the primary judge observed at [36] of Thompson v Ellis, the existence of a costs agreement that satisfies the requirements of the Legal Profession Act 2007, and which legally obliges a client to pay costs to their lawyers, is not a prerequisite for the making of a costs order or for undertaking a costs assessment.
As Martin CJ said in Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90 at [143]:
[I]t is not correct to say that the entitlement to charge and be paid costs is determined by the legislation which governs a legal practitioner's conduct. The entitlement to charge and be paid costs arises from the agreement of retainer between practitioner and client. Statutory regulation of the rights arising from such agreements does not alter their fundamental source.
The existence of a retainer gives rise to an implied undertaking on the part of the client to pay costs: Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541 at [30]; Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 at [172]; Oil Basins Limited v Watson [2017] FCAFC 103; (2017) 252 FCR 420 at [75]; and GrayvLavan [2024] WASCA 147 at [11]‑[20] (Buss P and Mitchell JA), [130]-[134] (Vandongen JA).
Accordingly, even if there were no relevant valid costs agreements as Ms Thompson contends, the legal practitioners engaged by the first and second respondents, respectively, would be entitled under the retainers which they undoubtably had, to recover from their clients the fair and reasonable value of the legal services provided: s 319 of the Legal Profession Act 2007. That value would correspond to the value that a lump sum costs assessment of the costs as between party and party would set: Dictionary, Schedule 1 of the Rules; and Frigger v Trenfield(No 12) [2022] FCA 900 (Frigger v Trenfield (No 12)) at [10], [39].
Secondly, Ms Thompson bore the onus of establishing that the first and second respondents in Thompson No 3 had no liability to their respective lawyers. However, the existence of that liability may readily be inferred from the unchallenged affidavit evidence that was before the primary judge. That evidence was, relevantly, to the effect that neither the first or the second respondent were claiming more than they were liable to pay for costs and disbursements: Thompson v Ellis at [43], [50]. In any event, in the absence of proof of an agreement to the contrary, of which there was none before the primary judge, a solicitor who acts on instructions for a party on the record is taken to be entitled to look to that party for costs: Marsh v Baxter [No 2] [2016] WASCA 51 at [37]‑[38].
Ms Thompson makes two further, but related, contentions in proposed grounds 1(e), (f) and (g). In that regard, Ms Thompson says, firstly, that the second respondent (a body corporate) had not validly appointed the lawyers who acted on its behalf in Thompson No 3. Secondly, she says that, in any event, there was no evidence that the second respondent had ever paid any legal costs to the lawyers acting on its behalf. Ms Thompson says, in effect, that the primary judge therefore erred in assessing the lump costs payable to the second respondent because, for those reasons, the second respondent had not incurred any costs liability to its lawyers, with the result that the indemnity principle had not been satisfied.
Both of those contentions are misconceived.
As I understand it, Ms Thompson's first contention, which is based on the primary judge's reasons at [33], is that the second respondent commenced and then continued the proceedings in Thompson No 3 in contravention of s 94(2) and s 100(5) of the Body Corporate and Community Management Act 1997 (Qld). However, even if that contention was correct, it is unclear why it would then follow that the second respondent did not validly appoint its lawyers.
Nevertheless, as the primary judge observed at [34]:
[T]he Full Court dealt squarely with Ms Thompson's submissions relating to the [second respondent's] compliance with the relevant legislation, upholding the primary judge's finding that the requisite ratifying special resolution had been passed: [Thompson Appeal at [151]-[153]]. I adopt and adapt the observations of Downes J in [Thompson Appeal at [148]] - this application is not yet another occasion for Ms Thompson to re-agitate arguments that have now been rejected in at least two other proceedings (see also Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 26 at [13]).
Insofar as Ms Thompson says that the indemnity principle was not satisfied because there was no evidence that the second respondent had ever made any payment to its lawyers for the legal costs claimed, the indemnity principle does not require costs to have been paid. The indemnity principle only requires that there be a legal liability to pay those costs: Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [126] (Basten JA); and Frigger v Trenfield (No 12) at [9].
For these reasons, proposed ground 1 has no reasonable prospects of success.
Proposed ground 2 is also misconceived. Ms Thompson asserts, in effect, that Bingham is authority for the proposition that the existence of a costs agreement between a legal practitioner and a client is a prerequisite for the payment of legal costs. However, Bingham was concerned with costs that were payable as between a legal practitioner and own client, not costs as between party and party.
In Bingham, a solicitor sought to appeal against an order setting aside a bankruptcy notice in which a demand for the payment of money was made to a former client of the solicitor. The total amount demanded was a judgment sum reflecting the total amount for which a costs assessor had determined were the costs of the legal services the solicitor had provided to his client in connection with an appeal, together with interest on that amount and disbursements. That determination was recorded in a 'certificate of determination of costs' issued pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW) and filed in court pursuant to s 71(3) of that Act. A bankruptcy notice was issued to the client, which demanded payment of the judgment sum. However, the bankruptcy notice was set aside at first instance on the basis that it did not represent a true debt. That determination was not disturbed on appeal.
As the primary judge said at [37] in Thompson v Ellis, the decision in Bingham is of no assistance to Ms Thompson. The existence and proper construction of a costs agreement was relevant to the outcome in Bingham because a bankruptcy notice had been issued for a purported liability between a lawyer and the lawyer's own client that was alleged to have arisen under that costs agreement.
Proposed ground 3 amounts to nothing more than a bare assertion. It is completely devoid of any meaningful content and it is unsupported by any submissions. It follows that Ms Thompson has failed to establish that this proposed ground has reasonable prospects of success.
Having concluded that none of the proposed grounds on which Ms Thompson wishes to rely have any reasonable prospects of success, it follows that it would be futile to grant an extension of time within which to seek leave to appeal against the orders made in QUD 419. Accordingly, I would refuse Ms Thompson's application for that extension of time.
I will now deal with the application for an extension of time within which to seek leave to appeal against the orders in QUD 420.
QUD 420 of 2023
In my view, Ms Thompson's application for an extension of time within which to seek leave to appeal against the orders in QUD 420 has no reasonable prospects of success because it is incompetent. Accordingly, the application must be refused.
The orders that were made by Goodman J in Thompson (Costs) were made pursuant to s 25(2B)(ab) of the FCA Act, which relevantly provides that a single judge may make an interlocutory order after the determination of an appeal. Accordingly, those orders were made in the exercise of the Court's appellate jurisdiction.
His Honour's order that the quantum of costs be awarded in a lump sum to be determined by a registrar was evidently made pursuant to s 35A(1)(h) of the FCA Act, read with r 3.01(1)(b) and item 220 in Schedule 2 of the Rules, as well as r 2.02(1)(b) and item 13 in Part 2 of Schedule 1 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules). In the circumstances, the effect of his Honour's order was to confer on a registrar a delegated power to make an order about the amount of the costs of the appeal, under r 40.02 of the Rules and r 13.01 of the Bankruptcy Rules. It follows that the registrar's determination and order fixing the amount of costs payable to the second respondent was also made in the exercise of the Court's appellate jurisdiction.
As the registrar was exercising this Court's appellate jurisdiction, it necessarily means that in conducting a review of the registrar's decision, the primary judge was also exercising that same jurisdiction. That is because, in carrying out a review under s 35A(5) of the FCA Act, the primary judge conducted a hearing in the nature of a rehearing de novo: Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600 at [1].
This means that the appellate jurisdiction of this Court, provided for in s 24 of the FCA Act, has been exhausted. Pursuant to s 24(1)(a) of the FCA Act, this Court only has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court. Appeals must not be brought from a judgment of the Court constituted by a single judge exercising the appellate jurisdiction of the Court, unless the High Court gives special leave to appeal: s 33(4) of the FCA Act.
As any appeal against the primary judge's decision in QUD 420 would necessarily be incompetent, there is no prospect of a grant of leave to appeal. Accordingly, Ms Thompson's application for an extension of time within which to seek leave to appeal against the orders made in QUD 420 is futile and must be dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen. Associate:
Dated: 19 June 2025
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