Qantas Airways Ltd v Lustig (No 2)

In Qantas Airways Ltd v Lustig (No 2), the Federal Court considered the costs of proceedings brought by Qantas against Peter Lustig and Giuseppe De Simone, who had instituted proceedings against Qantas in the Victorian Civil and Administrative Tribunal (VCAT). Qantas sought a declaration that VCAT lacked jurisdiction over the proceedings, which the Court granted in a prior decision, Lustig (No 1). The Court reserved the question of costs at that time, which it subsequently determined in this decision. The central legal issue was whether Qantas was entitled to its costs as the successful party in the proceedings, considering the unsuccessful arguments made by Lustig and De Simone.

The Court noted that while the question of costs is within its discretion, the general rule is that a successful party is entitled to its costs. Qantas had succeeded in having VCAT's jurisdiction challenged, except for the injunctive relief against Lustig and De Simone, which the Court deemed unnecessary. The Court also considered whether Qantas had taken genuine steps to resolve the dispute, as required by the Civil Dispute Resolution Act 2011 (Cth). The Court found that Qantas had made genuine attempts to negotiate a resolution before seeking the Court's determination of the jurisdictional issue.

The Court concluded that the ordinary rule that the successful party is entitled to its costs should apply. It rejected the arguments by Lustig and De Simone that no order for costs should be made or that Qantas should receive a discounted award of costs. The Court ordered that the first and second respondents, Lustig and De Simone, are to pay Qantas' costs as agreed or assessed.