- 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
.
Details
AGLC
Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission [1986] FCA 77
Case
[1986] FCA 77
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Ralkon Agricultural Company Pty Ltd sought to challenge an earlier decision by the Aboriginal Development Commission (ADC) and Point McLeay Community Council Inc. The ADC, represented by counsel, filed a notice of motion seeking the dismissal of Ralkon’s earlier application, which was adjourned sine die with liberty to restore on four days' notice. Additionally, the ADC sought an order for costs related to Ralkon’s application and its own notice of motion. The ADC argued that the circumstances were special enough to warrant a stay on the costs order, although it did not seek cross-examination of Ralkon’s witness. Ultimately, the court found that the ADC’s application to dismiss Ralkon’s motion was properly filed but declined to make the costs order sought.
The primary legal issues before the court were whether the ADC’s notice of motion was appropriately filed and, if so, whether the ADC was entitled to an order for costs. The ADC argued that the adjournment of Ralkon’s notice of motion provided a basis for dismissing the application and obtaining costs. Ralkon, however, opposed any order for costs being made in favor of the ADC but did not seek any costs in its own favor. The court considered various authorities on the matter of costs and the circumstances under which a stay might be appropriate. It concluded that while the ADC’s application was properly filed, there was insufficient evidence to support a stay on the costs order.
The court found that the ADC’s notice of motion was appropriately filed as Ralkon’s previous notice of motion was adjourned sine die. However, the court was not persuaded that the circumstances warranted a stay on the costs order. The court noted that Ralkon’s affidavit presented a case of special circumstances, which the ADC did not challenge through cross-examination. Nevertheless, the court decided against making the costs order sought by the ADC. Fisher J held that the authorities cited by the ADC related to cases where the applicant had already had its first appeal dismissed, which was not the situation here. Consequently, the court declined to make the costs order sought by the ADC.