CATCHWORODS 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-claimning 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 THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) ) No. G50 of 1981 ) GENERAL DIVISION BETWEEN: RALKON AGRICULTURAL COMPANY PTY. LIMITED Applicant - and - ABORIGINAL DEVELOPMENT COMMISSION and POINT McLEAY COMMUNITY COUNCIL INC. Respondents il March 1986 REASONS FOR DECISION FISHER J.: This is yet another application by way of notice of motion filed by the Aboriginal Development Commission ("the Commission") seeking in this 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 he 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 determination of the question whether the circumstances were or were not such as to justify the grant of a stay. Upon Ralkon indicating 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 C1897] P.D. 118 Schwepps v Gibbons £1904] W.N. 208 Morgan v Elford £18762 4 Ch.D 352 Grant and Ors v The Bangue Franco-Eqyptienne (1878) 3 C.P.D. 202. Counsel also cited Merry v Nickalis (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 1f cattle had to be sold to pay the costs prematurely and that this prejudice would not he 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 ali of the authorities cited by the Commission refer to circumstances where the applicant has already had its first appeal dismissed. This certainly appears to he the case when a stay of an order in relation to costs was the issue. Counsel for the Commission contended I should make