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

[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