Mees v Roads Corporation

[2003] FCA 410

FEDERAL COURT OF AUSTRALIA

Mees v Roads Corporation [2003] FCA 410

PRACTICE AND PROCEDURE – declaration – power of Court to grant declaration of right – utility of making declaration – declaration sought for purpose of clarifying reasons for judgment

PRACTICE AND PROCEDURE – costs – proper order – proceeding dismissed but applicant successful on substantial issue – respondents unsuccessful at interlocutory stage in resisting order for discovery of documents – letters offering to forego costs if applicant capitulated – whether Calderbank offers – offer after determination of substantive issue but before final orders – whether unreasonable of applicant to refuse – whether litigant’s public representations concerning prior reasons for judgment relevant to determination of question of costs

Federal Court of Australia Act 1976 (Cth) s 21

Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 at [8] – applied
Calderbank v Calderbank [1976] Fam 93 – considered
Oshlack v Richmond River Council [1998] HCA 11 (1998) 193 CLR 72 – cited

PAUL ANDREW MEES v ROADS CORPORATION, PETER BATCHELOR AND STATE OF VICTORIA
V 1135 of 2001

GRAY J
23 APRIL 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1135 of 2001

BETWEEN:

PAUL ANDREW MEES
APPLICANT

AND:

ROADS CORPORATION
FIRST RESPONDENT

PETER BATCHELOR
SECOND RESPONDENT

STATE OF VICTORIA
THIRD RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

23 APRIL 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondents’ costs of the proceeding on and after 17 April 2003.

3.Otherwise, there be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1135 of 2001

BETWEEN:

PAUL ANDREW MEES
APPLICANT

AND:

ROADS CORPORATION
FIRST RESPONDENT

PETER BATCHELOR
SECOND RESPONDENT

STATE OF VICTORIA
THIRD RESPONDENT

JUDGE:	GRAY J
DATE:	23 APRIL 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 8 April 2003, I published reasons for judgment in this proceeding.  On that day, I made orders requiring the parties to file and serve minutes of the orders they proposed should be made to resolve the proceeding consequent upon those reasons for judgment.  I directed that, if those orders be not agreed, the proceeding be listed for further hearing today, to enable the parties to make submissions concerning the orders that should be made consequent upon the reasons for judgment and the question of the costs of the proceeding.

2. Subsequent to those orders, both parties filed minutes of orders that they proposed should be made.  The respondents proposed orders that the application be dismissed and the applicant pay the respondents’ costs.  The applicant proposed a declaration to the effect that the referral to the Minister for the Environment (“the Environment Minister”) of the northern section of the Scoresby Freeway, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”), was misleading in one respect, in that it failed to inform the…