Arafura Seafood Products Pty Ltd v Landos, J.F

[1989] FCA 95

L .A

' c

NOT FOR DISTRIBUTION

.*	g s	IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) Xo. G1188 of 1988
)
GENERAL DIVISION

BE?WEEN:  AwlRTRA SEAFOOD PRODUCTS
P m LTD

First Appllcant

AND:  - JOHN ANDERSON

Second Applicant

AND:

- J.F. I lwwS

First Respondent

xvi :

- JWim SAAINSBURY

Second Respondent

- AND:

Third Respondent

No. G1406 of 1988

BElWEEN:	ARAFURA SEAFOOD PRODUCTS
m  LTD

First Applicant

AND:  - JOHN ANDERSCN

Second Applicant

AND:

- WNER MURRAY

-	CORAM:	Davies J.
-	DATE:	3 March 1989 - S ,'.\
PLACE :	Sydney

First Respondent

AND:

- SECRETARY, DEPARTMENT OF
PRIMRRY INDUSTRIES AND
ENERGY

Second Respondent

L. .

These two applications, No. 1188 of 1988 and No.

1406 of 1988 are brought under the Adminlstrat:-e	3e,	plslons
(Judicial Review) Act	1977 ‘Cth)	with respect to declslons

and actions taken under export control legislatlon.

The first proceedings were instltuted at an early

stage, namely	when notlce had been given that declslons were
under conslderation. The proceedings sought,	rn part at
least, delay in the making	of those decisions until

appropriate steps, in e nature of the giving of

particulars and like matters, had	been taken. The
proceedings also challenged the appropriateness	of taking
the decisions.

In that matter, there was an application for an

interlocutory injunction which was the sub~ect of a declslon given by me on 29 September 1988. The written reasons for

judgment in that case adequately set out the substance of

the matters in issue and the arguments of the parties and

the reasons for the declsion at that time.

After that ~udgment was given formal decisions or

determinations were taken and made and they were challenged

in proceedings No. 1406 of 1988.

The applicants now seek leave to discontinue both

proceedings and that application is not opposed by M r C.J.

Stevens, who appears for the respondents, save that	M C
Stevens requests an order for costs. The Court has	p w e r to

lmpose costs as a conditlon of the grant of leave. DC G.A.

Fllck, who appears for the appllcants, put forward	a n m e r
of matters In support of hls view &hat costs should	nor be
awarded against the applrcants.	He submitted that the
respondent had occasioned delay	b not reconsldering
promptly the actions taken, that the respondent as	well as
the appllcants had occasioned the	need to postpone

dlrections and other hearrngs from tune to time and that the

effect of the declsions ultimately taken had	been to deprive
cne apFl,;anrs	of llveilnd and to put the appilcants Into

a parlous financial posltion.

With respect to those matters, I thmk I can say

that I do not see them as ralsing matters which should alter

the view ordinarily taken	by a court rn deallng wltn zosts.
I have no evidence before	me that the respondents were

unduly dilatory ln mkmg any decision or that thelr conduct

in taking the decisions and making the determinatlons was

not correct, and it has not been pornted out to me that

there was any particular occaslon on whlch the respondents

in particular occasloned the costs of a postponement.

So I think that the matter should be looked at m

the llght of the ordlnary princrples, and those princlples

require a successful party to obtaln the	costs unless there
are good reasons to the contrary.	One of the reasons to the

contrary may be that the conduct of the successful party was

!

4 .

conduct which contrlbuted to brmg about the lltigatlon.

Insofar as the first proceedings are concerned -

that 1s So. 1188 3f 1988 - lt appears to ne frcm the

mformatlon that I have that conduct of the respondent	d;d
contribute In some way to the ?ltlgatlon.	.%ny 3f the
reasons for the declslon given	on 29 September 1988 were

directed to the issue of partrculars and, although that

judgment ultimately refused an lnterlocutory m~unctlon, I

think that it can	be said that the applicants achieved some
measure of success from what was sard	in the reasons for

~udgment which clearly expressed the need to give

appropriate partrculars before the decisions or

determinations proposed were made.

At p.26 of those reasons I mentioned speclflcally

that the motion was brought about	by the conduct of both the
applrcants and the respondents, and	it was for that reason

that the costs were not awarded against the unsuccessful

applicants but the matter was left to abide the result of

the principal proceedings.

Now, the principal proceedings have not come to

fruition so it is necessary for me to look at the matter

afresh, but	it seems to me that	I ought to take account of
the matters to which	I then adverted and that	I ought to
glve some werght to the fact	tnat there was conduct	on

behalf of the respondents that had contrlbuted to bringing
about the litlgatlon.

For those reasons, lt seem to me appropriate that

in No. 1188 of 1988 the applicants should pay one-half of

the respondents' costs of thcse prcceedlngs.

As to No. 1406 3f 1988, :nformatlon wlth respec- t3

those proceedings is not available to me. I have not before

me anything other than the application itself. Therefore It

seems to me that it should be ordered that the applicants

pay the respondents' costs of proceedlng No. 1406 of 1988.

I will make those two orders with respect to costs.

m e orders will include any reserved costs. I will grant

leave to the applicants to discontinue and direct that

notice of discontinuance	b filed within seven days.
I certify that this	and the 4
preceding pages are	a true copy of
the Reasons for Judgment herein	of
the Honourable	Hr Justice Davies.

Date : 3 March 1989

Counsel for the applicant:  Dr G.A. Flick

Solicltors for the applicant: Clayton Utz

Counsel for the respondent:  Nr C.J. Stevens

Solicitor for the respondent: Australian Government

Sollcltor

of Date baring: 3 March 1989