FEDERAL COURT OF AUSTRALIA Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5) [2011] FCA 1187 Citation: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 5) [2011] FCA 1187 Parties: POLAR AVIATION PTY LTD (ACN 007 986 834) and CLARK ANDREW BUTSON v CIVIL AVIATION SAFETY AUTHORITY, TERENCE FARQUHARSON, GARRY PRESNEILL, ROBERT COLLINS, JIM MARCOLIN, PETER JOHN and ALAN COOK File number: VID 255 of 2010 Judge: KENNY J Date of judgment: 20 October 2011 Catchwords: COSTS – where application dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – in the absence of any special circumstances costs to follow the event – applicants to pay respondents' costs Legislation: Federal Court of Australia Act 1976 (Cth) Cases cited: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 Seven Network Ltd v News Ltd (2009) 182 FCR 160 Date of hearing: 31 January 2011 Date of last submissions: 7 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 5 Counsel for the Applicants: Mr G Nash QC with Ms E J Boros Solicitor for the Applicants: Maitland Lawyers Counsel for the Respondents: Mr S McLeish SC with Mr I Harvey Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 255 of 2010 BETWEEN: POLAR AVIATION PTY LTD (ACN 007 986 834) First Applicant CLARK ANDREW BUTSON Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERENCE FARQUHARSON Second Respondent GARRY PRESNEILL Third Respondent ROBERT COLLINS Fourth Respondent JIM MARCOLIN Fifth Respondent PETER JOHN Sixth Respondent ALAN COOK Seventh Respondent JUDGE: KENNY J DATE OF ORDER: 20 OCTOBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicants pay the respondents' costs of, and incidental to, the proceeding (including reserved costs); and, in default of agreement, costs be taxed on a party and party basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 255 of 2010 BETWEEN: POLAR AVIATION PTY LTD (ACN 007 986 834) First Applicant CLARK ANDREW BUTSON Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERENCE FARQUHARSON Second Respondent GARRY PRESNEILL Third Respondent ROBERT COLLINS Fourth Respondent JIM MARCOLIN Fifth Respondent PETER JOHN Sixth Respondent ALAN COOK Seventh Respondent JUDGE: KENNY J DATE: 20 OCTOBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 30 September 2011, the Court made orders striking out the applicants' further amended statement of claim dated 29 September 2010 and dismissing the applicants' application dated 12 April 2010 pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ("the Act"). At the same time, the Court made orders allowing the parties to file submissions as to costs. 2 For the reasons briefly stated below, I would accept the respondents' submission that the applicants should pay the respondents' costs of the proceeding. 3 The respondents filed short submissions, which lead the applicants to state that they "make no submission in opposition". 4 The question of costs is governed by s 43 of the Act. This confers a broad discretionary power on the Court to award costs. In exercising this discretion, the Court is ordinarily guided by the rule that costs follow the event. This means that a successful litigant receives costs in the absence of circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 235 and Seven Network Ltd v News Ltd (2009) 182 FCR 160 at 403 [1100]-[1101]. No party proposed any such circumstances, and no such circumstances otherwise appear. Usually costs are ordered on a party and party basis; and no other basis is propounded for this case. 5 Accordingly, I would order that the applicants pay the respondents' costs of, and incidental to, the proceeding. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 20 October 2011