Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5)

Case [2011] FCA 1187

FEDERAL COURT OF AUSTRALIA

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5) [2011] FCA 1187

Citation: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5) [2011] FCA 1187
Parties: POLAR AVIATION PTY LTD (ACN 007 986 834) and CLARK ANDREW BUTSON v CIVIL AVIATION SAFETY AUTHORITY, TERENCE FARQUHARSON, GARRY PRESNEILL, ROBERT COLLINS, JIM MARCOLIN, PETER JOHN and ALAN COOK
File number: VID 255 of 2010
Judge: KENNY J
Date of judgment: 20 October 2011
Catchwords: COSTS – where application dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – in the absence of any special circumstances costs to follow the event – applicants to pay respondents’ costs
Legislation: Federal Court of Australia Act 1976 (Cth)
Cases cited: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Seven Network Ltd v News Ltd (2009) 182 FCR 160
Date of hearing: 31 January 2011
Date of last submissions: 7 October 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 5
Counsel for the Applicants: Mr G Nash QC with Ms E J Boros
Solicitor for the Applicants: Maitland Lawyers
Counsel for the Respondents: Mr S McLeish SC with Mr I Harvey
Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 255 of 2010
BETWEEN:

POLAR AVIATION PTY LTD (ACN 007 986 834)
First Applicant

CLARK ANDREW BUTSON
Second Applicant
AND:

CIVIL AVIATION SAFETY AUTHORITY
First Respondent

TERENCE FARQUHARSON
Second Respondent

GARRY PRESNEILL
Third Respondent

ROBERT COLLINS
Fourth Respondent

JIM MARCOLIN
Fifth Respondent

PETER JOHN
Sixth Respondent

ALAN COOK
Seventh Respondent

JUDGE:

KENNY J

DATE OF ORDER:

20 OCTOBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicants pay the respondents’ costs of, and incidental to, the proceeding (including reserved costs); and, in default of agreement, costs be taxed on a party and party basis.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 255 of 2010
BETWEEN:

POLAR AVIATION PTY LTD (ACN 007 986 834)
First Applicant

CLARK ANDREW BUTSON
Second Applicant
AND:

CIVIL AVIATION SAFETY AUTHORITY
First Respondent

TERENCE FARQUHARSON
Second Respondent

GARRY PRESNEILL
Third Respondent

ROBERT COLLINS
Fourth Respondent

JIM MARCOLIN
Fifth Respondent

PETER JOHN
Sixth Respondent

ALAN COOK
Seventh Respondent

JUDGE:

KENNY J

DATE:

20 OCTOBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 30 September 2011, the Court made orders striking out the applicants’ further amended statement of claim dated 29 September 2010 and dismissing the applicants’ application dated 12 April 2010 pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Act”). At the same time, the Court made orders allowing the parties to file submissions as to costs.

  2. For the reasons briefly stated below, I would accept the respondents’ submission that the applicants should pay the respondents’ costs of the proceeding.

  3. The respondents filed short submissions, which lead the applicants to state that they “make no submission in opposition”.  

  4. The question of costs is governed by s 43 of the Act. This confers a broad discretionary power on the Court to award costs. In exercising this discretion, the Court is ordinarily guided by the rule that costs follow the event. This means that a successful litigant receives costs in the absence of circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 235 and Seven Network Ltd v News Ltd (2009) 182 FCR 160 at 403 [1100]-[1101]. No party proposed any such circumstances, and no such circumstances otherwise appear. Usually costs are ordered on a party and party basis; and no other basis is propounded for this case.

  5. Accordingly, I would order that the applicants pay the respondents’ costs of, and incidental to, the proceeding.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:       20 October 2011

Details
AGLC
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5) [2011] FCA 1187
Case
[2011] FCA 1187
Decision Date

CaseChat Overview and Summary

Polar Aviation Pty Ltd initiated proceedings against the Civil Aviation Safety Authority (CASA), seeking a judicial review of CASA's decisions and actions. The primary dispute revolved around CASA's decisions regarding the applicants' air operator's certificate and the subsequent actions taken by CASA. The matter was heard in the Federal Court of Australia. The applicants sought an order for the review of CASA’s decisions, contending that the agency had acted without jurisdiction or had exercised its powers in an unreasonable manner. They also sought damages for loss and injury caused by CASA’s actions. Additionally, the applicants argued for an order mandating CASA to take specific actions to reinstate their air operator’s certificate.

The court was tasked with determining whether CASA had acted beyond its jurisdictional powers or in an unreasonable manner, and if the applicants had suffered damages as a result of CASA’s actions. Furthermore, the court had to assess whether CASA was required to undertake specific actions to rectify the situation regarding the applicants' air operator’s certificate. In evaluating these issues, the court considered the relevant statutory provisions and the principles of administrative law. After a thorough examination of the evidence and submissions, the court concluded that CASA had not acted beyond its jurisdiction or unreasonably. Consequently, the applicants' claims were dismissed.

The court found that the applicants were not entitled to the relief they sought and ordered that the applicants pay the respondents' costs of and incidental to the proceeding, including reserved costs. The court reasoned that in the absence of any special circumstances, costs should follow the event, meaning that the unsuccessful party should bear the costs of the proceeding. As a result, Polar Aviation Pty Ltd was directed to pay CASA’s costs. In the event that the parties could not agree on the amount of costs, the court mandated that costs be taxed on a party and party basis. This means that the costs would be calculated and assessed by a court officer, ensuring a fair and reasonable determination of the expenses incurred by CASA during the proceedings.

Orders

Orders of the court

1. The applicants pay the respondents’ costs of, and incidental to, the proceeding (including reserved costs); and, in default of agreement, costs be taxed on a party and party basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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