In Van Kleef v Tran [2016] ACTSC 316, 27 October 2016, a solicitor failed to serve certain medical reports on a defendant insurer which lead to a requirement to obtain the court’s leave to rely on the reports at trial. The court concluded that the reports were not properly served because of the default of the solicitor. The court granted leave to use the reports but ordered the plaintiff pay the defendant’s costs. However made a further order requiring the solicitor not to charge for the application to seek leave in the court and further that the solicitor personally pay the defendant’s costs so that the plaintiff did not have to personally pay those costs.

The situation is analogous to a migration agent making an error which leads to a client being liable for extra costs. There have been occasions when a migration advisor makes an error such that a visa application has to be withdrawn and a new application made. Or a visa application is refused and a new application made in circumstances where the visa application refusal may have been the migration advisor’s fault.


Here by analogy the migration advisor should pay for the costs of the second visa application and further should not charge professional fees for the costs ‘thrown away’ by the work that had to be redone because of the error.