Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3)
[2013] FCA 42
FEDERAL COURT OF AUSTRALIA
Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3) [2013]
FCA 42
Citation: Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3) [2013] FCA 42 Parties: REPACHOLI AVIATION PTY LTD (ACN 009 054 022) and GERALD KEITH REPACHOLI v CIVIL AVIATION SAFETY AUTHORITY File number: WAD 51 of 2009 Judge: MCKERRACHER J Date of judgment: 31 January 2013 Legislation: Federal Court Rules 2011 (Cth) r 40.04 Cases cited: Colgate-Palmolive Co v Cussans Pty Ltd (1993) FCR 225
Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2) [2012] FCA 1297Date of hearing: Determined on the papers Date of last submissions: 5 December 2012 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 5 Counsel for the Applicants: G Nash QC and E Boros Solicitor for the Applicants: Maitland Lawyers Counsel for the Respondent: IL Harvey and PJ Ward Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 51 of 2009
BETWEEN: REPACHOLI AVIATION PTY LTD (ACN 009 054 022)
First ApplicantGERALD KEITH REPACHOLI
Second ApplicantAND: CIVIL AVIATION SAFETY AUTHORITY
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
31 JANUARY 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicants’ application for leave to file a further re-amended statement of claim be dismissed.
2.Judgment be given for the respondent in relation to the whole of the proceeding.
3.The applicants to pay the respondent’s costs of the proceeding, including all reserved costs, to be taxed if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 51 of 2009
BETWEEN: REPACHOLI AVIATION PTY LTD (ACN 009 054 022)
First ApplicantGERALD KEITH REPACHOLI
Second ApplicantAND: CIVIL AVIATION SAFETY AUTHORITY
Respondent
JUDGE:
MCKERRACHER J
DATE:
31 JANUARY 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
In Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2) [2012] FCA 1297 (Repacholi Summary Judgment) I held that the applicants’ minute of further re‑amended statement of claim must be disallowed and an application to file a further re-amended statement of claim dismissed. I concluded that the respondent’s (CASA) application under s 31A of the Federal Court of Australia Act 1976 (Cth) must succeed.
I gave an opportunity for submissions to be filed by each of the parties following the Repacholi Summary Judgment but only CASA has filed submissions. Despite reminders given to the applicants’ solicitors, no submissions have been filed in response to the CASA’s submissions or otherwise. The applicants are weeks out of time. On 31 January 2013 the parties were notified that I would be making final orders on the basis that the applicants had not filed submissions.
In relation to costs, CASA cites r 40.04 of the Federal Court Rules 2011 (Cth) and submits that costs should follow the event. There are no special circumstances in this case suggesting otherwise. I accept that submission. The costs should therefore be on a party and party basis: Colgate-Palmolive Co v Cussans Pty Ltd (1993) FCR 225 (at 232-233) per Sheppard J. Further, a number of costs orders have already been made not only while these proceedings have been conducted in this court but also in respect of various interlocutory proceedings in the Supreme Court of Western Australia before the proceedings were cross vested. Those orders were made in favour of CASA on the usual party and party basis. Other costs have been reserved. A schedule of reserved costs appears below.
CASA is entitled to its costs of the whole of the proceedings on the usual basis.
Date Judicial Officer Nature of Hearing 24 November 2008 Registrar Johnson (WASC) Referral of plaintiff’s application for leave to file and serve amended statement of claim to Master (note that order reserves costs to the Master) 9 January 2009 Master Sanderson (WASC) Consent orders programming interlocutory applications for leave to file and serve amended statement of claim and for summary judgment 9 March 2009 Master Sanderson (WASC) Transfer of the proceeding and extant interlocutory applications to Federal Court (note that order reserves costs to the Federal Court) 21 April 2009 McKerracher J First Directions 10 September 2010 Gilmour J Leave to appeal 1 February 2012 McKerracher J Interlocutory hearing for transfer to Victorian Registry and for leave to file and serve amended statement of claim 3 May 2012 McKerracher J Interlocutory hearing regarding leave to file and serve amended statement of claim and dismissing claim as against the second respondent 19 July 2012 McKerracher J Interlocutory hearing programming applicants’ application for leave to file and serve amended statement of claim and respondent’s application for dismissal under s 31A FCA
It follows that the orders consequential upon the Repacholi Summary Judgment will be:
1.The applicants’ application for leave to file a further re-amended statement of claim be dismissed.
2.Judgment be given for the respondent in relation to the whole of the proceeding.
3.The applicants to pay the respondent’s costs of the proceeding, including all reserved costs, to be taxed if not agreed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 31 January 2013
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