McBAIN v C.A.S.A (No.2)
[2003] FMCA 123
•18 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McBAIN v C.A.S.A. (No.2) | [2003] FMCA 123 |
| PRACTICE & PROCEDURE – Costs – appeal from Administrative Appeals Tribunal – relevance of no costs power of Tribunal – applicant to pay respondent’s costs – costs follow the event. |
| Applicant: | BERNARD ERIC McBAIN |
| Respondent: | CIVIL AVIATION SAFETY AUTHORITY |
| File No: | MZ 1183 of 2002 |
| Delivered on: | 18 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 18 March 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P.W. Lithgow |
| Solicitors for the Applicant: | Grundy Maitland & Co |
| Counsel for the Respondent: | Mr A. Anastasi via telephone |
| Solicitor for the Respondent: | Office of Legal Counsel Civil Aviation Safety Authority |
ORDERS
The Applicant shall pay the Respondent's costs including reserved costs, if any, pursuant to the Federal Court Scale up to and including the date upon which the application was transferred to this court and thereafter upon the scale set out in schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1183 of 2002
| BERNARD ERIC McBAIN |
Applicant
And
| CIVIL AVIATION SAFETY AUTHORITY |
Respondent
REASONS FOR JUDGMENT
In this application I have already decided that the application be dismissed and published my reasons in a judgment delivered on 14 March 2003.
On that occasion the application was listed for mention this day to enable the parties to make submissions in relation to the issue of costs.
The respondent has submitted that in the circumstances where the notice of appeal, which had originally been filed in the Federal Court of Australia, was unsuccessful, that costs should follow the event.
It was submitted on behalf of the applicant that in the circumstances where this effectively is an appeal from a decision of a Tribunal where costs would not be awarded, that this court likewise should embrace the notion that in general terms it is the right of citizens to challenge and seek review of decisions by the government, in particular authorities such as the respondent in the present application.
To the extent that costs do not follow the event before the Tribunal, save I should note in some exceptional areas, such as safety, rehabilitation and compensation, it is submitted that in the present to award costs would be inconsistent with the general spirit, if not, the letter of the law in relation to the award of costs.
The respondent has submitted, however, that in the present circumstances there is no reason to depart from the usual procedure that costs follow the event.
I should also add that it was submitted on behalf of the applicant that in circumstances where you have a government authority competing with an individual, that also provides a further basis upon which there should be no order for costs.
By way of reply the respondent has submitted, as indicated, that costs should follow the event in the normal manner, that if this court has power to award costs, as does the Federal Court of Australia, then it would be inappropriate not to exercise that power. This is a court and consequently in a court where an appeal is lodged the usual order is that costs follow the event.
Whilst I have some sympathy for the general thrust of the submissions made for and on behalf of the applicant in relation to appeals from the Tribunal and note that, as indicated earlier, that it is not a Tribunal which normally has power to impose costs, it is my view that once an appeal is lodged in the Federal Court, and particularly I note, as submitted by the representative of the respondent, that the notice of appeal itself seeks orders for costs, it seems to me that in the circumstances of this case, in common with many other cases dealt with by this court and the Federal Court of Australia, a costs order should be made.
There is nothing unusual about this case or exceptional that would enable the court to make an order that costs do not follow the event.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 March 2003
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