Australian Flight Services v Minister for Industry Science & Technology - [1996] FCA 288

CATCHWORDS

COSTS - successful application for costs of interlocutory hearing to be taxed and paid forthwith - matters to be taken into consideration - discrete interlocutory matter - separate from primary issue in the principal trial.

Federal Court Rules O 62 r 3

Thunderdome Racetime and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Allstate Life Insurance Co (No 14) (Lindgren J, 18 August 1995, unreported)

Allstate Life Insurance Co & Others v Australia and New Zealand Banking Group Limited & Others (No 13) (Full Court of the Federal Court of Australia, 17 August 1995, unreported)

Metcalf v NZI Securities Australia Limited (5 March 1996, unreported)
Harris v Cigna Insurance Australia Limited (1995) ATPR 41-445

No SG 16 of 1996

AUSTRALIAN FLIGHT TEST SERVICES PTY LTD           Applicant
- and -
MINISTER FOR INDUSTRY,
SCIENCE AND TECHNOLOGY  First Respondent
- and -
THE COMMONWEALTH OF AUSTRALIA             Second Respondent
- and -
THE FLINDERS UNIVERSITY OF
SOUTH AUSTRALIA  Third Respondent
- and -
JÖRG MICHAEL HACKAR  Fourth Respondent
- and -
PETER SCHWERDTFEGER  Fifth Respondent

O'LOUGHLIN J
ADELAIDE
26 APRIL 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 16 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:
AUSTRALIAN FLIGHT TEST
SERVICES PTY LTD
Applicant
- and -

MINISTER FOR INDUSTRY,
  SCIENCE AND TECHNOLOGY
First Respondent
- and -
THE COMMONWEALTH OF
  AUSTRALIA
Second Respondent
- and -
THE FLINDERS UNIVERSITY OF
  SOUTH AUSTRALIA
Third Respondent
- and -
JÖRG MICHAEL HACKAR
Fourth Respondent
- and -
PETER SCHWERDTFEGER

Fifth Respondent
MINUTES OF ORDER

CORAM:    O'LOUGHLIN J
PLACE:    ADELAIDE
DATE:     26 APRIL 1996

THE COURT ORDERS:

That the Flinders University of South Australia have leave to tax the costs of and incidental to the

application filed by Australian Flight Test Services Pty Ltd wherein injunctive relief was sought (including the costs of this order).

That Australian Flight Test Services Pty Ltd pay the costs referred to in paragraph 1 hereof forthwith upon the service upon it of the allocatur.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 16 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:

AUSTRALIAN FLIGHT TEST
SERVICES PTY LTD

Applicant

- and -

MINISTER FOR INDUSTRY,
SCIENCE AND TECHNOLOGY

First Respondent

- and -

THE COMMONWEALTH OF
AUSTRALIA

Second Respondent

- and -

THE FLINDERS UNIVERSITY OF
SOUTH AUSTRALIA

Third Respondent

- and -

JÖRG MICHAEL HACKAR

Fourth Respondent

- and -

PETER SCHWERDTFEGER

Fifth Respondent

REASONS FOR JUDGMENT

CORAM:    O'LOUGHLIN J
PLACE:    ADELAIDE
DATE:     26 APRIL 1996

Australian Flight Test Services Pty Ltd ("AFTS") sought injunctive relief against the respondents, the Minister for Industry, Science and Technology, the Commonwealth of Australia, the Flinders University ("the University"), Jörg Michael Hackar and Peter Schwerdtfeger. The last two named respondents, Hacker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] FCA 288
Decision Date: 26 APRIL 1996

CaseChat Overview and Summary

The case involves Australian Flight Test Services Pty Ltd (AFTS) as the applicant and the Minister for Industry, Science and Technology, the Commonwealth of Australia, the Flinders University of South Australia, Jörg Michael Hackar, and Peter Schwerdtfeger as respondents. AFTS sought injunctive relief to prevent the Commonwealth from providing further funds to the University under a grant and to restrain the University from expending funds received from the Commonwealth. The primary dispute concerns a grant of $8.5 million awarded to the University in June 1995, which excluded AFTS, despite a joint proposal submitted in January 1995. AFTS failed in its application for injunctive relief, leading the University to seek an order for costs, including an order for the immediate taxation and payment of those costs.

The legal issues before the court included whether the application for injunctive relief was a discrete matter separate from the principal issues in the trial and whether it was in the interests of justice to order the immediate taxation and payment of costs. The court considered several precedents, including Thunderdome Racetime and Scoring Pty Ltd v Dorian Industries Pty Ltd, Allstate Life Insurance Co cases, and Metcalf v NZI Securities Australia Limited, to assess whether the successful party should be deprived of the benefit of its order for costs until the case is finally disposed of.

O'Loughlin J concluded that the interlocutory proceedings addressed a distinct issue and that the injunctive relief sought was separate from the primary issues in the trial. The urgency and potential consequences of the injunctive relief application influenced the decision. The court determined that it was in the interests of justice to exercise its discretion and order that the costs be taxed and paid forthwith.

The court granted the University leave to tax the costs of and incidental to the application filed by AFTS wherein injunctive relief was sought, including the costs of this order, and ordered that AFTS pay those costs forthwith upon service of the allocatur. This decision ensures that the University does not have to wait until the conclusion of the principal proceedings to recover its costs.

Orders