South Pacific Air Motive Pty Limited v Magnus

[1998] FCA 1815

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1079 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SOUTH PACIFIC AIR MOTIVE PTY LIMITED FIRST APPELLANT

GROUP AIR PTY LIMITED

SECOND APPELLANT

AND: KENNETH MAGNUS FIRST RESPONDENT

CIVIL AVIATION SAFETY AUTHORITY SECOND RESPONDENT

AIRSERVICES AUSTRALIA THIRD RESPONDENT

JUDGES: BEAUMONT, HILL, SACKVILLE JJ. DATE: 13 NOVEMBER, 1998 PLACE: SYDNEY

JUDGMENT ON COSTS THE COURT: Pursuant to the directions given by the Court in the judgment delivered on 9 September 1998, each party has filed submissions on costs.

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The proceedings are representative proceedings. No order has been made under s 33Q(3) of the Federal Court of Australia Act 1976 ("Federal Court Act"). Accordingly, the Court may not award costs against the persons on whose behalf the proceedings have been brought, although an award may be made against the first respondent, as the representative of the represented parties: Federal Court Act, s 43(1A).

The appellants point out that they have succeeded on two of the three questions determined by the appeal and that the answers to those questions determine the proceedings adversely to the represented parties who were passengers in the aircraft. They acknowledge that they did not succeed on the third question, but say that the first respondent largely confined his submissions to the first two questions. They submit that the first respondent should pay the appellant's costs of the appeal or, alternatively, fifty per cent of their costs of the appeal.

The appellants also submit that the costs order made by Wilcox J on 27 November 1997 should be set aside and the first respondent ordered to pay the appellants' costs on the same basis as the costs of the appeal. On that date Wilcox J ordered the appellants to pay the first respondent ninety per cent of the costs incurred in respect of the motion determined on that day. Alternatively, the appellants say that the question of costs should be remitted to Wilcox

J.

Finally, the appellants submit that the costs reserved on 12 March 1998, when the original appeal was adjourned, should follow the result of the second appeal. The circumstances of the two appeals (although they bear the same number) are set out in the judgment of 9 September 1998: South PaciJic Air Motive Pty Ltd v Magnus (1998) 157 ALR 443, at 464-

466.

The first respondent submits that, since he succeeded on the third question, he should have the costs of the appeal insofar as they relate to that question. He says that the costs of the proceedings before Wilcox J should be determined by his Honour.

Both parties have enjoyed some measure of success (and experienced some degree of failure)

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in the appeal. Each bears some responsibility for the procedural difficulties referred to in the judgment. In these circumstances, we do not think it appropriate to apportion costs according to the time spent on the various issues or their importance to the outcome of the litigation. The appropriate order is that each party bear its or his own costs of the appeal.

Having regard to the outcome of the appeal, the costs order made by Wilcox J on 27 November 1997 should be set aside. However, the costs of that motion, and of the determination of the separate questions made by Wilcox J on 9 April 1998, should be remitted to his Honour. Some of the orders made on 27 November 1997 were not the subject of appeal and thus have not been considered by us. Moreover, Wilcox J will be familiar with all the issues that might bear on the appropriate costs orders in respect of the proceedings at first instance. In the circumstances it is preferable that he should deal with these issues.

The orders of the Court are as follows:

1. Each party bear its or his own costs of the appeal.

2. Set aside par 3 of the orders made by Wilcox J on 27 November 1997.

3. Direct that costs of the notice of motion determined by Wilcox J on 27 November 1997, and the costs of the determination of the separate questions, made on 9 April 1998, be remitted to Wilcox J.

I certify that this and the preceding two (2) pages are a true copy of the Judgment on Costs herein of the Court.

Associate: %&k-

Dated: 13 November, 1998

Counsel for the Applicant: Mr N C Hutley SC with Mr M Leeming

Solicitor for the Applicant: Norton Smith &Co

s

Counsel for the Respondent: J M Foord QC with Mr J E Rowe

Solicitor for the Respondent: Coleman &Grieg

Date of Hearing: 29 May 1998

Date of Judgment on Costs: November, 1998