Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission

[1986] FCA 77

77 C A T C H W O R D S

PROCEDURE - Application by respondent to dismiss notice of motion

- Notice of motion had been adjourned sine die with liberty to

restore on 4 days’ notice - Application made by further notice

of

motion - Costs - Respondent-claiming costs - Notice of motion

adjourned upon an undertaking given by respondent.

RALKON AGRICULTURAL COMPANY PTY. LIMITED

Applicant

- and -

ABORIGINAL DEVELOPMENT COMMISSION and POINT MCLEAY COMMUNITY

COUNCIL INC.

Respondents

No. G50 of 1981

FISHER J. ADELAIDE

11 MARCH 1986.

IN W FEDERAL COURT OF AUSTRALIA )

1

SOUTH AUSTRALIA DISTRICT REGISTRY 1

1 No. G50 of 1981

B E T W E E N :

RALKON AGRICULTURAL COMPANY

PTY. LIMITED

Applicant

- and -

ABORIGINAL DEVELOPMENT

COMMISSION and POINT McLEAY

COMMUNITY COUNCIL INC.

Respondents

11 March 1986

REASONS FOR DECISION

FISHER 3 . : This is yet another application by way of notlce of

motion filed by the Aboriginal Development Commission ("the

Commission") seeking in thls instance an order that the-

application of Ralkon Agricultural Company Pty. Limited

("Ralkon") instituted by notice of motion filed on 25 June 1984

be dismissed with costs. There was, of course, no need for this

further notice of motion to be filed, Ralkon's notice of motion

having been on 10 July 1984 adjourned sine die with liberty to

restore on 4 days' notice. The appropriate course was for the

Commission to bring the matter again before the Court on the

prescribed notice, indicating to the Court and Ralkon the further

- 3 .

set out the circumstances which were said to be special and which

justified staying proceedings in relation to the order for costs.

After discussion, during which I indicated that I could see no

ground for staying the taxation of the bill of costs, counsel for

_ _

each of the respondents offered an undertaking not to enforce or

otherwise execute any order for payment of costs pending the

final determination of the application. There was no

cross-examination of Mr. Hillock and no determuation of the

question whether the circumstances were or were not such as to

justify the grant of a stay. Upon Ralkon indlcating that it was

prepared to accept this undertaking the application was, as

previously related, adjourned sine die. Liberty was granted to

bring this application on again on four	days' notice and the
question of costs was reserved.

The matter remained dormant until 7 February 1986 when

the Commission filed its notice of motion seeking orders that the

application of the applicant by notice of motion dated 25 June

1984 be dismissed and that the costs of and incidental to that

application, including the costs of its notice of motion be the

costs of the Commission. When first called upon early In the

hearing counsel for Ralkon indicated that his instructions were to consent to the Commission being released from its undertaking

and to Ralkon's notice of motion being dismissed. He opposed

however any order for costs being made in favour of the

Commission but did not seek any order in favour of his client on

either of the two notices of motion. There was evidence before

5.

11, Amoco v Rocca Bros (1972) 7 S.A.S.R. 268 at page 325, Wilson

v Church (1879( 12 Ch.D 454 (which dealt with costs) The Ratata

C18971 P.D. 118 Schwepas v Gibbons C19043 W.N. 208 Moraan v

Elford L18763 4 Ch.D 352 Grant and Ors v The Banaue

Franco-Esvatienne (1878) 3 C.P.D. 202. Counsel also cited Merry

v Nickalls (1873) 8 L.R. Ch. App. 205 a case in which a stay of

an order for costs was granted but the applicant was required to

pay the costs of the application.

I do not understand counsel for Ralkon to dispute any of

these authorities. He contends that his client put forward by

affidavit a case of special or exceptional circumstances in that

extreme hardship would be caused if cattle had to be sold to pay

the costs prematurely and that this prejudice would not be

rectified by repayment of the costs if the appeal was successful.

This view of the facts was naturally not accepted by the

Commission which indicated that it would challenge the evidence

on cross-examination. However I did not make and was not asked

to make a finding that special or exceptional circumstances such

as to warrant a stay did not exist.

It is my opinion that I should not make the order for

costs sought. It was said that all of the authorities cited by

the Commission refer to circumstances where the applicant has

already had its first appeal dismissed. This certainly appears

to be the case when a stay of an order in relation to c sts was

the issue. Counsel for the Commission contended I should make

.