Aussie Airlines Pty Ltd v Australian Airlines Ltd and Ors Qantas Airlines Ltd v Aussie Airlines Pty Ltd

Aussie Airlines Pty Ltd, an applicant, filed a motion against Australian Airlines Ltd and Qantas Airlines Ltd, the first and second respondents, respectively, as well as the Federal Airports Corporation, the third respondent. The case involves a dispute over whether the applicant was a "new entrant to the domestic aviation industry" and, if so, whether it is entitled to damages from the respondents. The applicant sought the determination of separate issues, namely whether it was a "new entrant," and if so, whether it could recover damages from the respondents. Sundberg J addressed the issue of reserved costs of a motion, application, or other proceeding under Order 62 rule 15 of the Federal Court Rules. The applicant argued that the "event" referred to in the rule was the determination of the separate questions, and that it should be awarded the reserved costs as it had been successful on that issue. However, the court held that the "event" referred to in the rule is the final disposition of the proceeding and that the phrase "unless the Court or a Judge otherwise orders" is directed to the judge who finally disposes of the case. In this case, the outcome of the principal proceeding was still to be determined, and so Order 62 rule 15 was not relevant to the application before the court. The court held that it was not persuaded that it should now order that the applicant have its costs of the separate questions application before Drummond J.

The court also addressed the issue of the respondents' motion for costs, following the applicant's failure to comply with a discovery order. The court held that the respondents should have their costs of the motion and of the day, as the applicant was in default in respect of discovery, and the notice of motion was issued. The court further held that there was no reason to release the security money provided by the applicant for the respondents' costs of the proceeding, as the ultimate outcome of the principal proceeding was still to be determined.

Finally, the court held that the applicant was entitled to its taxed costs of the injunction proceeding, but not on a "solicitor/own client basis or alternatively, an indemnity basis," as the respondents had not realized from the beginning that their case was hopeless. The court certified that the reasons for judgment were a true copy and provided details of the counsel and solicitors involved in the case, as well as the dates of the hearing and judgment.