South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1445

JUDGMENT No, .J M4 18

La Ge0cconeeses

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 { RECE!

PLACE: SYDNEY 41 17 NOV 1998 A FEDER OF

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.

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

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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.