FEDERAL COURT OF AUSTRALIA Minus v Selth (No 2) [2017] FCA 1233 File number: NSD 1023 of 2016 Judge: LOGAN J Date of judgment: 18 October 2017 Catchwords: COSTS – notice of estimate – failure to object to costs estimate in accordance with Rules – certificate of taxation – application for an extension of time to file notice of objection – factors relevant to exercise of discretion – acceptable explanation – arguable case – absence of prejudice – application dismissed PRACTICE AND PROCEDURE – costs – notice of estimate – meaning of issue of notice – notice posted by taxing officer to specified address for service – no proof of non-delivery – absence of receipt by party until after time for objection irrelevant PRACTICE AND PROCEDURE – procedural fairness – litigants in person Legislation: Acts Interpretation Act 1901 (Cth) s 29 Corporations Act 2001 (Cth) s 471B Federal Court of Australia Act 1976 (Cth) ss 4, 37P Federal Court Rules 2011 (Cth) r 2.16, r 4.01, r 11.01, r 35.11, r 35.14, r 39.05, r 40.18, r 40.19, r 40.20, r 40.21, r 40.32 Cases cited: Capper v Thorpe (1998) 194 CLR 342 Donald Fuller v Minister for Primary Industries & Energy, National Registration Authority [1998] FCA 377 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Finch v The Heat Group Pty Ltd (No 3) [2016] FCA 102 Gallo v Dawson (1990) 64 ALJR 458 Minus v Selth [2016] FCA 834 Ralph v Repatriation Commission (2016) 248 FCR 438 Selth v Australasian Barrister Chambers Pty Ltd (2015) 243 FCR 423 Territory Realty Pty Ltd v Garraway (No 3) [2013] FCA 914 Tinkler v Elliott [2012] EWCA Civ 1289 Date of hearing: 18 August 2017 Date of last submissions: 9 September 2017 (Applicants) 22 September 2017 (Respondents) Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Trade Marks Category: Catchwords Number of paragraphs: 53 Counsel for the Applicants: The applicants appeared in person Counsel for the Respondents: Mr M O'Meara ORDERS NSD 1023 of 2016 BETWEEN: DEREK MICHAEL MINUS First Applicant DISPUTE RESOLUTION ASSOCIATES PTY LTD ABN 50 090 594 451 Second Applicant AUSTBAR PTY LTD ACN 608 133 768 (and another named in the Schedule) Third Applicant AND: PHILIP SELTH IN A REPRESENTATIVE CAPACITY FOR THE MEMBERS OF THE AUSTRALIAN BAR ASSOCIATION First Respondent ABA AUSTRALIAN BAR ASSOCIATION LTD ACN 605 949 148 Second Respondent JUDGE: LOGAN J DATE OF ORDER: 18 OCTOBER 2017 THE COURT ORDERS THAT: 1. The requirement for the applicants to file an interlocutory application for an extension of time within which to: (a) file a notice of objection, in accordance with Form 128; and (b) pay into the Litigants' Fund an amount of $2,000 as security for costs of any taxation of the bill; be dispensed with. 2. The applicants be deemed to have filed and served such an interlocutory application on 1 March 2017, the date upon which the affidavit of Derek Michael Minus filed on 26 June 2017 was made. 3. The interlocutory application as so deemed be dismissed. 4. The applicants pay the respondents' costs of and incidental to that interlocutory application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 The present application is a sequel to orders made by Kenny J on 22 July 2016: Minus v Selth [2016] FCA 834 (leave application judgment). On that day, Kenny J dismissed an application dated 27 June 2016 by the present applicants. Of present moment is her Honour's further order that: Unless a party notifies in writing the Court by 4:00pm on Monday 25 July 2016, indicating opposition to this order as to costs, the first, second and third applicants pay the respondents costs of the application, such costs to be taxed in default of agreement. 2 The present applicants are the first, second and third applicants referred to in that costs order. They are, respectively, Mr Derek Minus, who is a barrister and two corporations with which he is associated, Dispute Resolution Associates Pty Ltd and AUSTBAR Pty Ltd. Mr Minus appeared on his own behalf and on behalf of the other applicants. 3 The respondents are, respectively, Mr Philip Selth OAM, the Chief Executive and representative of an unincorporated association known as the Australian Bar Association and a company associated with that unincorporated association, ABA Australian Bar Association Ltd. They appeared by counsel. 4 The application dated 27 June 2016 was made under r 35.14 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). It was for an extension of time to seek leave to appeal, and leave to appeal under r 35.11, from various interlocutory judgments and orders. Those judgments and orders are detailed by Kenny J in the leave application judgment. Her Honour also there offers a summary of the earlier litigation, noting, as I do, that its background is more particularly described in the reasons for an interlocutory judgment of 22 December 2015: Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423 at [5] to [72]. I gratefully adopt her Honour's summary: In broad terms, in the primary proceedings NSD 975 of 2014, Mr Philip Selth sues in a representative capacity for the members of an unincorporated association, "The Australian Bar Association" (ABAU), and the ABA Australian Bar Association Ltd (ABA Ltd), for alleged trademark infringements (including in respect of the use of two domain names) by the applicants and Australasian Barrister Chambers Pty Limited (in liquidation), as well as alleged misleading or deceptive representations to consumers under the Australian Consumer Law. In parallel proceedings NSD 1019 of 2014, the New South Wales Bar Association is also a represented applicant. Amongst other things, the applicants (respondents in the primary proceedings) contest the title and capacity of ABAU and ABA Ltd to assert proprietorship over the marks. 5 On 8 December 2015, Australasian Barrister Chambers Pty Limited was ordered to be wound up under the Corporations Act 2001 (Cth). The Court subsequently granted leave under s 471B of that Act to proceed against that company in the principal proceeding. 6 As it happened, there was no notification in writing by any party before the time appointed signifying opposition to the costs order made on 22 July 2016. The order for the payment of costs made that day therefore took effect according to its terms. 7 On 31 August 2016, in accordance with r 40.18 of the Federal Court Rules, the respondents filed a long form Bill of Costs. Inclusive of disbursements, the total amount of that Bill was $35, 779.88. 8 Rule 40.20 of the Federal Court Rules materially provides: (3) The taxing officer will give notice, in writing, to each party interested in the bill, of the estimate made under subrule (1) (the notice of estimate). (4) Unless a party interested in the bill objects to the estimate in accordance with rule 40.21, the amount of the estimate is the amount for which the certificate of taxation will be issued. 9 On 23 January 2017, the taxing officer, a Deputy District Registrar of the Court (taxing officer), caused a letter with the following features to be posted, in purported compliance with the requirement under r 40.20 to give a notice of estimate to each party interested in a Bill of Costs: • The letter was addressed and posted to: (a) The solicitors acting for the present respondents; and "Mr Derek Michael Minus Suite 602 67 Castlereagh Street SYDNEY NSW 2000" • The letter commenced with the salutation, "Dear Parties"; • The letter bore (in bold type) the subject title: "Re Derek Michael Minus & Ors v Philip Selth in a Representative Capacity for the Members of the Australian Bar Association & Anor Matter Number NSD 1023 of 2016" • The author made reference to the Bill of Costs filed by the present respondents on 31 August 2016 and continued: Under rule 40.23(3) of the [Federal Court Rules], I give you notice that the estimate made of the approximate total for which, if the Bill were to be taxed, the certificate of taxation would be likely to issue is $28,308.31. 10 Rule 40.21 of the Federal Court Rules makes the following provision in respect of an objection to an estimate: Objection to estimate (1) A party interested in the bill who wants to object to the estimate must, within 21 days after the issue of the notice of estimate: (a) file a notice of objection, in accordance with Form 128; and (b) pay into the Litigants' Fund an amount of $2 000 as security for the costs of any taxation of the bill. (2) On receipt of the notice of objection and the payment in paragraph (1)(b), the Registrar may direct: (a) the parties to attend before a designated Registrar for a confidential conference to: (i) identify the real issues in dispute; and (ii) reach a resolution of the dispute; or (b) a provisional taxation; or (c) that the taxation of the bill proceed. 11 Subject to a submission by the applicants as to the meaning of the term, "issue" in r 40.21(1), it is common ground that none of the applicants either filed a notice of objection, in accordance with Form 128 or paid the specified security of $2 000 into the Litigants' Fund within 21 days after the issue of the letter of 23 January 2017. 12 On 15 February 2017, a registrar issued a certificate of taxation, at least purportedly pursuant to r 40.20 of the Federal Court Rules, certifying that the respondents' costs in accordance with the costs order were deemed to be $28,308.31. 13 On 1 March 2017, Mr Minus made an affidavit in which he stated, at [13]: 13. I request that I be afforded the opportunity to indicate my objection not withstanding the date by which the response was required has past as I was prevented by circumstances beyond my control from responding within the allowed time. [sic] 14 It will be necessary shortly to relate the circumstances detailed by Mr Minus in his affidavit. 15 The Court file discloses that, by an email sent on 22 February 2017, Mr Minus sought from the taxing officer advice as to how he (the email was cast in the first person) might file a notice of objection and have the Bill taxed. The following day, one of the Court's case managers, on behalf of the taxing officer, replied by email: If you are unable to obtain the consent of the Respondents to file your Notice of Objection out of time, the Registrar will make the following Orders in chambers: 1. Dispense with the requirement for the Applicant to file an Interlocutory Application. 2. On or before 1 March 2017 by 4 pm, the Applicant to file an Affidavit outlining the basis why the Notice of Objection should be allowed to be filed out of time; 3. On or before 15 March 2017 by 4 pm, the Respondents to file any Affidavit and/or written submissions in reply if there is any opposition to what is sought by the Applicant in Order 2. The Registrar will then consider the documents in chambers and make a decision on the papers. 16 No consent was forthcoming from the respondents. Mr Minus' affidavit was sent by email on 1 March 2017 to the taxing officer. It was also sent that day by email to the solicitors for the respondents. 17 The affidavit was not filed until 26 June 2017. The occasion for that delay is not to be attributed to any act or omission on the part of Mr Minus. Rather, there seems to have been something of a conundrum emerge within the Registry as to how to deal with Mr Minus' application. In the result, it was not, as had been foreshadowed, dealt with on the papers by the taxing officer. Instead, a decision was made that it should be referred to a judge. Further, it was decided that the judge concerned ought not to be one assigned to the Court's New South Wales Registry. That decision was made out of an abundance of caution, given Mr Selth's hitherto longstanding other role as the Chief Executive of the New South Wales Bar Association and because Mr Minus was a member of the New South Wales Bar. So it was that the application came to be assigned to me for determination. 18 Given the hiatus, I considered that the hearing of the application for an extension of time within which to file a notice of objection ought to be expedited. It is fair to say that the degree of expedition initially nonplussed Mr Minus but it proved possible to ameliorate that by an adjournment and provision for the making of supplementary written submissions to be filed and served during a looming period of duty in Papua New Guinea and subsequent leave. 19 Reacting to the casting of his correspondence in the first person, the orders foreshadowed by the taxing officer in the reply to Mr Minus on 23 February 2017 are in the singular. Paragraph 13 (quoted above) of Mr Minus' consequential affidavit of 1 March 2017 is also in the singular, which reinforces an impression that only he, not the related corporate applicants, wishes to object to the Bill of Costs. Viewed against the wider context of the proceedings before Kenny J and the oral and written submissions made by Mr Minus, a different impression namely, that each applicant wishes to object, is created. Quite fairly, the respondents have approached the application on the basis that it is made by each of the applicants. I consider that the interests of justice require that it be determined on that basis. 20 The Court's record discloses that the taxing officer did not, in the end, make the orders foreshadowed in the letter of 23 February 2017. In the circumstances related, it seems to me necessary to order that the requirement for the applicants to file and serve an Interlocutory Application for an extension of the time specified in r 40.21 for the giving of a notice of objection and payment into the Litigants' Fund be dispensed with. 21 What then of the explanation, to be regarded as made on his own behalf and of the corporate applicants, offered by Mr Minus in his affidavit of 1 March 2017? The respondents did not seek to cross-examine him in respect of the explanatory statements he made in that affidavit. I have no reason to doubt the correctness of those statements. The account in the following paragraphs is based on my finding that the events occurred as Mr Minus relates in his affidavit. 22 On 6 December 2016, in the Supreme Court of New South Wales, in case number 2015/003226742, Brereton J made orders appointing, a Mr David Henry Sampson of BPS Recovery as receiver to the corporate entity that owned the offices at Suite 602, 67 Castlereagh Street, Sydney NSW 2000. It was at those offices that Mr Minus maintained chambers for the purpose of his practice and related activities. That address, it will be recalled, was the one used by the taxing officer for the purposes of his letter of 23 January 2017. The day after his appointment as receiver, Mr Sampson took possession of those offices and caused the entry door locks to be changed. This prevented Mr Minus from accessing his chambers and, materially, from collecting mail addressed to and received at that address. 23 Assuming that "issue" is to be construed as, in this case, posted, Mr Minus calculates the 21 day period after 23 January 2017 to have expired on 13 February 2017. That is correct. 24 On 15 February 2017, Mr Minus received an Express Mail satchel sent by the receiver. That contained a package of various items of his business mail received at his chambers address following the receiver's taking of possession of them. This mail included, materially, the letter from the Court's taxing officer of 23 January 2017. Mr Minus forthwith (which I take to be that day) rang the Court's registry in Sydney to advise a case officer of that fact. 25 At the time when the taxing officer sent the letter of 23 January 2017, the applicants' specified address for service in the present proceedings was: Mediation & Arbitration Chambers 6th Floor 67 Castlereagh Street Sydney NSW 2000 26 Mr Minus also makes the following statement in his affidavit of 1 March 2017: 12. The Federal Court has not provided any alternate means of notification such as email, such that I could be properly alerted to the need to provide a response within the required time frame. 27 This, with all due respect, manifests a failure to take personal responsibility for the consequences of one's actions or, more accurately, inactions. It is an odd statement for any legal practitioner to make. It is even more odd in the present case, given that Mr Minus is a barrister of some 25 years standing (leave application judgment at [3]). For it has long been a feature of civil litigation that a party must give and maintain an address for service within the jurisdiction. That feature is manifested in the current Rules of Court in r 11.01, which provides: Address for service--general (1) An address for service for a party must include the address of a place within Australia at which a document in the proceeding may, during ordinary business hours, be left for the party and to which a document in the proceeding may be posted to the party. (2) If a party is represented by a lawyer who has general authority to act for that party, the address for service for the party must be the address of the lawyer. (3) The address for service must contain the information mentioned in rule 2.16. (4) If the party is represented by a lawyer, the party agrees for the party's lawyer to receive documents at the lawyer's email address. (5) If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address. Note: The parties may agree on how service is to be effected. For example, the parties may agree that service be at a fax number. Rule 2.16, referred to in r 11.01(3), provides: Details at foot of each document (1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document: (a) the name and role of the party on whose behalf the document is filed; (b) the name of the person or lawyer responsible for preparation of the document; (c) if the party is represented by a lawyer--the telephone number, fax number and email address of the lawyer; (d) if the party is not represented by a lawyer--the telephone number, fax number and email address, if any, of the party; (e) the address for service of the party. (2) In this rule: "role of the party" means the capacity in which the party is participating in the proceeding. 28 The address for service of the applicants which I have set out above is the address specified at the foot of the application dated 27 June 2016. As at 6 December 2016 and 23 January 2017, this remained the applicants' address for service on the court file. 29 Given that two of the applicants are corporations, r 11.02 and r 4.01(2) are also relevant, respectively providing that a corporation's address for service must be filed by a lawyer and that a corporation may only proceed in the Court by a lawyer. The term "lawyer" is, for the purposes of the Federal Court Rules (see the "Dictionary"), defined by s 4 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). It is there provided that the term means, "a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory". Mr Minus is such a person. For the purposes of this case, it is unnecessary to consider whether the filing of documents in a court is to be regarded as work usually undertaken by a barrister, as opposed to a solicitor. 30 The responsibility for maintaining an up to date address for service, and the consequences of not so doing, fall on a party. It is no part of the Registrar's responsibility to provide to a party an alternate address for service. That is not to say that, the Registrar may not permissibly use an email address for communications where that has been provided by a party. Rules 11.01(4) and 11.01(5) of the Federal Court Rules contemplate that such an address may be used for the receipt of documents. An email address was specified at the foot of the application dated 27 June 2016. But it was perfectly permissible for the taxing officer to comply with the requirement found in r 40.20(3) to give notice by sending a letter to a party by pre-paid post addressed to that party at that party's specified address for service. The notice of estimate represented by that letter would then be deemed to have been given, in the absence of proof to the contrary, when the letter would have been delivered to the specified address in the ordinary course of the post: s 29 of the Acts Interpretation Act 1901 (Cth). 31 One of the applicants' submissions was that the notice of estimate nonetheless was not "given", because it was not received by them at the nominated address for service. That the notice of estimate was delivered to that nominated address for service is inferentially more likely than not, on the applicants' own evidence. That is because it and other mail items received there were forwarded to them by the receiver. Even proof of non-receipt at the nominated address would not, in itself, displace a statutory presumption as to delivery: Capper v Thorpe (1998) 194 CLR 342 at 352, [23]; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 97; Ralph v Repatriation Commission (2016) 248 FCR 438 at [19]. It is just nothing to the point, in relation to whether the notice of estimate was duly "given", that none of the applicants was able to access the address for service which they had originally specified and which they had failed to update because of changed circumstances. 32 The applicants also submitted that the notice of estimate was defective on its face because it was necessary to give notice to each of the applicants and this particular notice did not. 33 That each of the applicants was, in terms of r 40.20(3), a "party interested in the bill" may be accepted. So, too, was each respondent. Thus, the taxing officer was obliged to give notice of the estimate to each of them. This the taxing officer did. The letter of 23 January 2017 must be read fairly and as a whole. It contains the collective salutation, "Dear Parties". Any doubt as to who those parties might be is resolved by the subject title of the letter, which refers to the matter number and parties to the present proceeding. Those parties not expressly named are embraced by the abbreviation, "& Ors". In context, these features of the letter make it clear that the taxing officer was thereby giving notice of the estimate to each of the parties. The naming of the solicitors for the respondents and of Mr Minus (inferentially in his own right as someone who had acted for the corporate applicants) was nothing more than a recognition that each was an agent at a specified address for service on the respective parties. 34 The applicants' understanding as to what amounted to the lawful "giving" of the notice of estimate is therefore flawed. They also assimilated when a notice was, in terms of r 40.20(3), "given" with when, in terms of r 40.21(1), that notice was "issued". This assimilation also manifests a misunderstanding. According to the Oxford Dictionary, "issue" as used as a noun means "the action of going out". That is one of the senses in which the Macquarie Dictionary defines the word but, with respect, oddly, the authors of that work also give "delivery" as one of its meanings: "the act of sending, or promulgation; delivery; emission". The definition in the Oxford Dictionary is the better. To go out is one thing; to be delivered is another and to be received by the addressee quite another again. In the context of service by post, a notice is "issued" when it is posted. 35 The applicants' case has been cast on the premise that the letter of 23 January 2017 was posted that day. That was when it was "issued". That the Rules focus on the date of issue rather than when a notice of estimate is "given" is unsurprising when one recalls that such a notice must be "given" to each interested party. The dates when the notice is given to each such party may be disparate, whereas it is inherently likely in registry practice that the notice will go out simultaneously on the date which it bears, thus yielding the reference point, common to all parties, of but one date of "issue". Receipt is no part of "issue". The applicants' submission to the contrary must be rejected. 36 It becomes necessary to determine whether or not to grant an extension of time to the applicants within which to file a notice of objection and pay the specified sum into the Litigants' Fund. 37 The discretion to extend a time fixed by the Federal Court Rules for the doing of an act is unfettered. Obviously enough, the discretion falls to be exercised in the whole of the circumstances of a given case and an applicant must provide, by reference to those circumstances, some reason why a time fixed by the Rules ought to be extended. But it would be unsound to seek to fetter the exercise of that discretion 38 In Gallo v Dawson (1990) 64 ALJR 458 at 459 it fell to McHugh J to determine an application for an extension of time within which to appeal. The observations made by his Honour in that case about the granting of an extension of time are, in my view, relevant by analogy. Thus, I accept that an extension may be granted where it is necessary to do justice between the parties. A time limit fixed by the Rules must not, in its application to the circumstances of a particular case become an instrument of oppression or be antithetical to the proper administration of justice. 39 That said, the Rules set out the usual practice and procedure of the Court. Each party is entitled to expect that, in the ordinary course, a proceeding will be conducted by reference to that practice and procedure. With the advent of digital technology and databases publicly accessible via the internet, notably including via the Court's website, the contents of the Rules have never been more readily ascertainable. 40 Further, there is not one set of Rules for those who choose for whatever reason to act for themselves and those who conduct proceedings via a lawyer. A number of judges of this Court, me included, have in the past cited with approval the following observation made in the Court of Appeal of England and Wales in Tinkler v Elliott [2012] EWCA Civ 1289 at [32]: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. Where, as here, the litigant in person or, as the case may be, the representative of the corporate applicants is a barrister of 25 years' standing, one might expect that the margin for indulgence is narrow indeed and the need for an acceptable explanation for delay all the greater. 41 Yet further, even if an explanation is provided, it would be pointless to grant an extension in the absence of an applicant exposing an arguable case which would be prosecuted were an extension granted. And the subjects of acceptable explanation and arguable case are not to be approached and considered in isolation one from the other. They interplay. An explanation which is not terribly compelling for a failure to comply with a prescribed time limit may, considered in conjunction with a strongly arguable case, well warrant the granting of an extension of time. And the reverse is also true. 42 Also relevant is whether the delay has occasioned any prejudice to an interested party. 43 Mr Minus does offer an explanation for why a notice of objection was not given in time by the applicants. But it is hardly an acceptable one. 44 As the note to r 40.20 indicates would happen, after the Bill of Costs was filed on 31 August 2016, the Registrar fixed a time and date for the taxing officer to make an estimate of the Bill and endorsed those details on the Bill. The date for the taxation estimate endorsed on this Bill is "week commencing September 19th". The endorsed date then serves as a reference point as to by when the Bill of Costs must, as r 40.19 of the Federal Court Rules requires, be served on each party interested in the Bill. Given the way in which the Registrar has chosen to endorse the Bill, it had to be served at least 7 days before 19 September 2016. This aspect of costs practice was not explored either in evidence or submissions. In the absence of compliance being made controversial, I shall presume regularity. As it happened, the estimate did not issue until 23 January 2017 but the applicants must have known from about mid-September that it could issue at any time thereafter. When it did not issue in the week commencing 19 September 2016, it became all the more important for them to make sure that their hitherto specified address for service either continued to be current or was changed accordingly. 45 The address for service which the applicants had specified was, as noted, Mr Minus' chambers address. The receiver was appointed prior to the Summer Law Vacation. In the ordinary course, one might expect that a barrister would, in the ordinary course, attend his or her chambers with some regularity prior to the Summer Law Vacation. Mr Minus' affidavit is noteworthy for his absence of explanation as to how it was, on and from 6 December 2016, he was unaware, if not of the appointment of a receiver who had consequentially taken possession, at least that he could no longer access his chambers. It seems to me that his affidavit manifests an absence of candour. 46 Mr Minus made much in the submissions which he made on his own behalf and that of the corporate applicants about a need to be afforded procedural fairness in relation to the fixing of the amount of the costs liability. But the Rules provide, via the procedure for the giving of a notice of objection, for an interested party to be afforded an opportunity to be heard prior to the fixing of the amount of a costs liability. The existence of an opportunity to be heard is one thing, a failure by unacceptably explained inadvertence to put oneself in a position of taking up an opportunity is quite another. 47 Even allowing for this, an extension might nonetheless be warranted if it could be seen that there was an arguable case that, on any view, the amount of the estimate was manifestly unreasonable or that there was some other basis upon which it was arguable that the amount of the estimate would likely be reduced by other than a trifling sum following objection. It is to be remembered that the taxing officer formulates an estimate in the absence of the parties and without examining each item in the Bill and the amount claimed in respect of it: Territory Realty Pty Ltd v Garraway (No 3) [2013] FCA 914 at [5]; see also Donald Fuller v Minister for Primary Industries & Energy, National Registration Authority [1998] FCA 377. 48 In formulating the amount of the estimate relative to the amount specified in the Bill of Costs, the taxing officer necessarily formed a view that the latter significantly overstated an amount reasonably to allow on a party and party basis. The applicants have completely failed to detail why it is that it is arguable that the amount of the estimate would further be reduced upon objection. The step which would next follow after the giving of a notice of objection would be the convening by the Registrar of a confidential conference of interested parties at which an endeavour would be made to identify the real issues in dispute in relation to the Bill and to reach a resolution of that dispute: r 40.21(2)(a). The applicants have chosen to give not a hint as to what, from their perspective, those "real issues" might be. 49 The delay here is a short one. By 1 March 2017 at the latest, the respondents were well aware that the applicants wished to object to the Bill of Costs. Even so, in my view the explanation for the delay is not acceptable and it has not been shown by the applicants that there is any point, in the form of an arguable case for the granting of an extension. This is sufficient reason to dismiss the applicants' application. 50 The respondents advanced a further reason why the application ought to be dismissed. They submitted that it was futile. That was because the certificate of taxation which issued on 15 February 2017 was, by r 40.32(2) of the Federal Court Rules, deemed to be an order of the Court. That being so, they submitted that none of the bases specified in r 39.05, upon which the Court may vary or set aside a judgment or order after it has been entered was present in the circumstances of this case. The evidence does not establish that the certificate of taxation was issued in the absence of a party (notice of the estimate was given), does not reflect the intention of the Court, contains a clerical mistake, or contains an error from an accidental slip or omission. 51 In Finch v The Heat Group Pty Ltd (No 3) [2016] FCA 102 at [33(a)], with reference to the power found in r 1.35 to dispense with compliance with the Rules, Murphy J opined, by reference to prior authority that, "while … the Court must always be guided by the interests of justice, the overarching principle of finality of litigation means that the Court should be cautious before varying or setting aside an order which has been entered". So much may be accepted. But the Court also is given power, by s 37P(3)(f) of the Federal Court of Australia Act, "to waive or vary any provision of the Rules of Court in their application to the proceeding". If the case truly were one for the granting of an extension of time within which to object and pay into the Litigants' Fund, this statutory power might be used to vary what would otherwise have been the effect of r 40.32(2) in respect of the certificate of taxation and to order that the provision in r 40.20(4) for the amount of the estimate to be the amount for which the certificate of taxation is to issue be dispensed with. The plenary power otherwise found in s 37P would permit the Court to make such further or other orders as were necessary so as not to render in a worthy case the granting of an extension of time futile. I therefore do not rest my dismissal of the applicants' application on any inability to engage one or more of the bases found in r 39.05 for varying or setting aside what is otherwise taken to be an order which has been entered. 52 Finally, it was put on behalf of the respondents that none of the applicants had paid the specified sum of $2,000.00 into the Litigants' Fund. On the evidence, which would include any evidence of such payment were it to be found in the court file, there has been no such payment. But the time for the making of any such payment would only expire at the expiration of any extension of time granted. If a particular applicant did not make a payment, that applicant would then be non-compliant with one of the two requirements for contesting the Bill of Costs. There is nothing in this aspect of the respondents' opposition to the granting of an extension of time. 53 For these reasons, the application should be dismissed. There is no reason why the applicants should not pay the respondents' costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 18 October 2017 SCHEDULE OF PARTIES NSD 1023 of 2016 Applicants Fourth Applicant: AUSTRALASIAN BARRISTER CHAMBERS PTY LIMITED ABN 80 133 736 848