PRACTICE AND PROCEDURE – costs – discontinuance – where applicant discontinued proceedings with leave of the Court – difference between circumstances where proceedings are discontinued with leave and without leave of the Court – principles governing award of costs – no express provision in the Federal Court Rules – award of costs in the discretion of the Court – underlying policy in the Federal Court Rules when proceedings are discontinued – no determination on merits – whether the proceedings futile – futility a matter of fact not subjective or objective belief – public interest litigation – regulation of airspace – no personal interest in litigation – reasonableness of parties’ conduct in the circumstances of the proceedings – no order as to costs.
RICHARD HAROLD SMITH v AIRSERVICES AUSTRALIA NSD 1351 OF 2004
STONE J 22 JULY 2005 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v Airservices Australia [2005] FCA 997
Case
[2005] FCA 997
Decision Date
CaseChat Overview and Summary
Smith v Airservices Australia is a case before the Federal Court of Australia where the applicant, Mr Smith, sought to challenge a decision by Airservices Australia to implement a reclassification of Australian airspace known as "Option 3". The applicant contended that the decision was unlawful and that it would have a negative impact on the safety of air navigation in Australia. Airservices Australia, the respondent, argued that the decision was within its lawful powers and was based on a thorough review of the implementation of the National Airspace System Stage 2(b). The legal issues before the court were whether the decision was lawful and whether the applicant had standing to bring the proceedings. The court found that the decision was lawful and that the applicant did not have standing to bring the proceedings as he had not demonstrated a sufficient connection to the decision or its effects. The court also found that the applicant had not shown that he had a special interest in the subject matter of the decision or that he had suffered a special injury as a result of the decision. The court held that the applicant's claims were not within the scope of the ADJR Act and that the application should be dismissed. As a result, the court dismissed the application and made no order as to costs.
Orders
Orders of the court
1. There be no order as to the costs in these proceedings.
Background
Background to the litigation
In general terms the applicant’s submissions rely on his assertion that he had commenced the proceedings in the public interest because he had grave concerns about the impact of the Decision on the safety of air navigation in Australia; that by virtue of his experience and expertise in air navigation and safety issues he was in a unique position to understand the implications of the Decision; that neither he nor any associate of his had a personal, financial or other interest in the outcome for which he contended in the proceedings; and that he sought to discontinue the proceedings only when it appeared to him to be futile to continue because he reasonably expected the Decision to be reversed before Option 3 was to be implemented. As it happened this expectation was not met; the parties have informed the Court that Option 3 was implemented on 25 November 2004.BACKGROUNDThe Decision On 22 February 2002, Mr Anderson, the Minister for Transport and Regional Services (‘the Minister’) announced the terms of reference for a Special Aviation Reform Group (‘SARG’) which was to recommend a preferred plan for the reform of Australia’s low level airspace. The applicant was a member of SARG from its creation until April 2004. On 13 May 2002, the Minister announced that, on the recommendation of SARG, the Government had decided to adopt the National Airspace System (‘NAS’) as the model for reform of Australia’s airspace. The Minister stated that the applicant and Qantas developed the NAS model. The Minister also stated:‘This model is based on the airspace model used in the world’s leading aviation nation, the United States. A safety case will be required to be developed for NAS, and the existing processes will continue to be followed in finalising the safety case. The implementation of NAS will mean that Australian airspace will be harmonised with [International Civil Aviation Organisation’s] airspace classifications.’ The NAS model was adopted in a series of stages between November 2002 and November 2003. These proceedings concerned NAS Stage 2(b), which was implemented on 27 November 2003. The respondent is a body corporate established by s 7 of the Air Services Act. Pursuant to s 8(1) of the Air Services Act its functions include providing services and facilities (including air traffic control) related to, among other things, the safety, regularity or efficiency of air navigation. Pursuant to s 9, in exercising its functions, the respondent must regard the safety of air navigation as the most important consideration. On 2 August 2004, the respondent announced that its review of the implementation of NAS Stage 2(b) had shown that ‘enhancements should be made in some areas’ of NAS Stage 2(b) to add safety and economic benefits. On 27 August 2004, the respondent made the Decision, which, as noted above, was to implement a reclassification of Australian airspace known as ‘Option 3’. In its Statement of Reasons for Decision, made pursuant to s 13(2) of the ADJR Act, the respondent described Option 3 as follows:‘In substance Option 3 provided for:(a)retention of most of the enroute Class E airspace;(b)the reclassification of Class E airspace steps above and adjacent to Class D towers to Class C airspace;(c)the building of new Class C airspace steps above all Class C and D towers to the base of Class A or Class C airspace in order to contain pressurised aircraft climb/descent profiles;(d)simplification of areas where control area steps overlap by introducing some areas of enroute Class C airspace between 12 500 and 18 000 feet;(e)reclassification of Class G airspace over Bass Strait and Tasmania to a base of between 14 500 and 12 500 feet;(f)reclassification of Class G airspace to Class E airspace corridors between Sydney and Dubbo and Melbourne and Mildura.’