Smith v Airservices Australia [2005] FCA 997

FEDERAL COURT OF AUSTRALIA

Smith v Airservices Australia [2005] FCA 997 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. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13 Air Services Act 1995 (Cth), ss 7, 8, 9, 11, 16 Civil Aviation Act 1988 (Cth), ss 8, 9 Environmental Planning and Assessment Act 1979 (NSW), s 123 Federal Court of Australia Act 1976 (Cth), s 43 Judiciary Act 1903 (Cth), s 39B Land and Environment Court Act 1979 (NSW), s 69 Migration Act 1958 (Cth), s 417 Federal Court Rules, O 22 rr 2, 3, O 62 r 26 Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 1436 referred to Bell v Macquarie Bank Limited [2000] FCA 1521 distinguished Bucknell v Robins [2004] QCA 474 discussed De Silva v Minister for Immigration and Multicultural Affairs [1998] FCA 311 cited FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9 cited Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 cited Grundy v Lewis [1998] FCA 563 referred to Harvey Norman Holdings Limited v Fels [2002] FCA 13 cited Hollier v Australian Maritime Safety Authority (No. 2) [1998] FCA 975 referred to Inground Constructions Pty Ltd v Federal Commissioner of Taxation (1994) 27 ATR 513 cited Lean v Tumut River Orchard Management Limited [2004] FCA 1670 cited Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 cited North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 cited O'Neill v Mann [2000] FCA 1680 discussed Oshlack v Richmond River Council (1998) 193 CLR 72 discussed Potato Marketing Corporation of Western Australia v Galati Nominees Pty Ltd [2004] FCA 1216 discussed Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1998) 186 CLR 622 applied Ruddock v Vadarlis [2001] FCAFC 1865 discussed South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 cited Sullivan v Secretary, Department of Defence [2005] FCA 786 cited Tasmanian Conservation Trust v Minister for Environment and Heritage [2004] FCA 883 referred to Taylor v Australian Postal Corporation [2004] FCA 1265 referred to RICHARD HAROLD SMITH v AIRSERVICES AUSTRALIA NSD 1351 OF 2004 STONE J 22 JULY 2005 SYDNEY