FEDERAL COURT OF AUSTRALIA
Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 3) [2013] FCA 42
IN THE FEDERAL COURT OF AUSTRALIA | |
REPACHOLI AVIATION PTY LTD (ACN 009 054 022) First Applicant GERALD KEITH REPACHOLI Second Applicant | |
AND: | CIVIL AVIATION SAFETY AUTHORITY Respondent |
DATE OF ORDER: | 31 JANUARY 2013 |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicants’ application for leave to file a further re-amended statement of claim be dismissed.
2. Judgment be given for the respondent in relation to the whole of the proceeding.
3. The applicants to pay the respondent’s costs of the proceeding, including all reserved costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 51 of 2009 |
BETWEEN: | REPACHOLI AVIATION PTY LTD (ACN 009 054 022) First Applicant GERALD KEITH REPACHOLI Second Applicant
|
AND: | CIVIL AVIATION SAFETY AUTHORITY Respondent
|
JUDGE: | MCKERRACHER J |
DATE: | 31 JANUARY 2013 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
1 In Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2) [2012] FCA 1297 (Repacholi Summary Judgment) I held that the applicants’ minute of further re-amended statement of claim must be disallowed and an application to file a further re-amended statement of claim dismissed. I concluded that the respondent’s (CASA) application under s 31A of the Federal Court of Australia Act 1976 (Cth) must succeed.
2 I gave an opportunity for submissions to be filed by each of the parties following the Repacholi Summary Judgment but only CASA has filed submissions. Despite reminders given to the applicants’ solicitors, no submissions have been filed in response to the CASA’s submissions or otherwise. The applicants are weeks out of time. On 31 January 2013 the parties were notified that I would be making final orders on the basis that the applicants had not filed submissions.
3 In relation to costs, CASA cites r 40.04 of the Federal Court Rules 2011 (Cth) and submits that costs should follow the event. There are no special circumstances in this case suggesting otherwise. I accept that submission. The costs should therefore be on a party and party basis: Colgate-Palmolive Co v Cussans Pty Ltd (1993) FCR 225 (at 232-233) per Sheppard J. Further, a number of costs orders have already been made not only while these proceedings have been conducted in this court but also in respect of various interlocutory proceedings in the Supreme Court of Western Australia before the proceedings were cross vested. Those orders were made in favour of CASA on the usual party and party basis. Other costs have been reserved. A schedule of reserved costs appears below.
4 CASA is entitled to its costs of the whole of the proceedings on the usual basis.
Date | Judicial Officer | Nature of Hearing |
24 November 2008 | Registrar Johnson (WASC) | Referral of plaintiff’s application for leave to file and serve amended statement of claim to Master (note that order reserves costs to the Master) |
9 January 2009 | Master Sanderson (WASC) | Consent orders programming interlocutory applications for leave to file and serve amended statement of claim and for summary judgment |
9 March 2009 | Master Sanderson (WASC) | Transfer of the proceeding and extant interlocutory applications to Federal Court (note that order reserves costs to the Federal Court) |
21 April 2009 | McKerracher J | First Directions |
10 September 2010 | Gilmour J | Leave to appeal |
1 February 2012 | McKerracher J | Interlocutory hearing for transfer to Victorian Registry and for leave to file and serve amended statement of claim |
3 May 2012 | McKerracher J | Interlocutory hearing regarding leave to file and serve amended statement of claim and dismissing claim as against the second respondent |
19 July 2012 | McKerracher J | Interlocutory hearing programming applicants’ application for leave to file and serve amended statement of claim and respondent’s application for dismissal under s 31A FCA |
5 It follows that the orders consequential upon the Repacholi Summary Judgment will be:
1. The applicants’ application for leave to file a further re-amended statement of claim be dismissed.
2. Judgment be given for the respondent in relation to the whole of the proceeding.
3. The applicants to pay the respondent’s costs of the proceeding, including all reserved costs, to be taxed if not agreed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 31 January 2013
