Federal Court of Australia
Nine Network Australia Pty Ltd v Civil Aviation Safety Authority (No 2) [2021] FCA 1337
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The orders of the Court made in this proceeding on 23 September 2021 be vacated.
2. The proceeding be dismissed.
3. There be no order as to costs in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCKERRACHER J:
1 This proceeding was filed urgently last month. It concerns the validity of a decision made by the respondent (CASA) to declare the airspace above Melbourne’s central business district (CBD) to be a ‘restricted area’ within the meaning of the Airspace Regulations 2007 (Cth). The effect of the impugned decision was to prevent news media organisations, such as the Nine Network Australia Pty Ltd, Seven Network (Operations) Limited, and the Australian Broadcasting Corporation (together, the applicants), from flying aircraft over Melbourne’s CBD to obtain and broadcast vision of protests and demonstrations that were occurring in Melbourne. There was a concern that such vision was being strategically misused by protesters.
2 The applicants sought urgent interlocutory relief staying or suspending CASA’s decision. Rofe J granted the applicants that relief. The applicants say, however, that the effect of the Court’s orders was to provide them with, in substance, final relief in the proceeding, or at the very least, a substantial victory. Almost immediately after the orders were made, CASA withdrew the impugned decision.
3 Although the hearing of the substantive application for final relief had been docketed to me, the practical need to determine the final issue has fallen away. Thus, the proceedings will be dismissed by consent and these reasons relate only to costs.
4 The applicants seek costs of and incidental to the proceeding, fixed in the sum of $58,129, or such other sum the Court considers appropriate. In response, CASA contends the parties should bear their own costs of the originating application and that the applicants should pay CASA’s costs on an indemnity basis from 6 October 2021 in answering the application for costs.
BACKGROUND
5 For a number of days, from around 20 September 2021, protests and demonstrations occurred in Melbourne. The applicants had been reporting on those protests and demonstrations. The applicants’ reporting included the use of a helicopter for the purposes of taking aerial footage and using that footage for reporting, including by way of live broadcasting.
6 CASA was established by s 8 of the Civil Aviation Act 1988 (Cth). By s 9 of that Act, among other things, CASA has the function of ‘conducting the safety regulation’ of civil air operations in Australian territory. Separately, the Airspace Act 2007 (Cth) has the effect of conferring certain functions upon CASA. Section 11(1) of the Airspace Act provides that regulations may make provision for and in relation to conferring functions and powers on CASA that are in connection with the administration and regulation of Australian-administered airspace. The Airspace Regulations were made under the Airspace Act. Regulation 6, which was the key provision in this proceeding, empowers CASA to declare that an area is a ‘restricted area’ in certain circumstances. As its description makes apparent, aircraft are restricted by such a declaration from flying in a ‘restricted area’. Regulation 6 of the Airspace Regulations relevantly provides as follows:
6 Designation of prohibited, restricted or danger areas
(1) CASA may, in writing, make a declaration designating an area of Australian territory to be a prohibited area, a restricted area or a danger area.
…
(3) CASA must not declare an area to be a restricted area unless, in the opinion of CASA, it is necessary to restrict the flight of aircraft over the area to aircraft flown in accordance with specified conditions in the interests of any of the following:
(a) public safety, including the safety of aircraft in flight;
(b) the protection of the environment;
(c) security.
…
(5) A declaration:
(a) must specify an area by reference to its boundaries; and
(b) may specify the boundaries of an area to extend to a volume of airspace.
(6) A declaration made under this regulation does not take effect until published in accordance with regulation 7.
(7) Unless sooner revoked, a declaration ceases to have effect:
(a) on the day, or on the day and time, specified in the declaration; or
(b) on the day, or on the day and time, of the occurrence of an event specified in the declaration; or
(c) in the circumstances specified in the declaration.
Note: A declaration made under this regulation is not a legislative instrument (see paragraph (a) of item 1A of Part 2 of Schedule 1 to the Legislative Instruments Regulations 2004).
7 Relevantly, under reg 6(3)(a) of the Airspace Regulations, CASA may only declare an area to be a restricted area if in its opinion, it is necessary ‘to restrict the flight of aircraft over the area to aircraft flown in accordance with specified conditions’, in the interests of public safety. Regulation 7 provides that CASA must cause such a declaration to be published, in the case of a declaration to have effect for less than three months, in a ‘Notice to Airmen’ (NOTAM) as defined in the Air Services Regulations 2019 (Cth). The NOTAM is published in accordance with reg 15 of the Air Services Regulations.
8 On the afternoon of 22 September 2021, a NOTAM was published in the following terms:
MELBOURNE FIR (YMMM)
C1019/21 REVIEW C1018/21
TEMPO RESTRICTED AREA ACT
FOR PUBLIC SAFETY WI 3NM RADIUS OF 374900S 1445800E
EXCLUDING COINCIDENT PORTION OF CONTROLLED AIRSPACE.
NO ENTRY WITHOUT APPROVAL OF CONTROLLING AUTHORITY
VIC POL CONTACT: [mobile number]
SFC TO 2500FT AMSL
FROM 09 220349 TO 09 260900 EST
DAILY 2000/0900
9 The NOTAM identified that the purpose of the declaration was ‘public safety’. The NOTAM provided that there was to be no entry to that airspace without the approval of the ‘controlling authority’, being Victoria Police. The NOTAM provided the contact phone number of a senior police officer within Victoria Police. There is no reference in the statutory scheme to the concept of a ‘controlling authority’.
10 Later in the afternoon on 22 September 2021, a further NOTAM was notified, in the following terms:
MELBOURNE FIR (YMMM)
C1021/21 REVIEW C1020/21
TEMPO RESTRICTED AREA ACT
FOR PUBLIC SAFETY WI 3NM RADIUS OF 374900S 1445800E
NO ENTRY WITHOUT APPROVAL OF CONTROLLING
AUTHORITIES.
WI CONTROLLED AIRSPACE CONTROLLING AUTHORITY IS
AIRSERVICES AUSTRALIA
CTC TEL: [telephone number].
IN CLASS G AIRSPACE CONTROLLING AUTHORITY IS VIC POL
CTC: [mobile number]
SFC TO 2500FT AMSL
FROM 09 220516 TO 09 260900 EST
DAILY 2000/0900
11 This second NOTAM was in generally the same terms, and had the same effect, as the first NOTAM, except that there were now two controlling authorities identified: Airservices Australia for ‘controlled airspace’, and Victoria Police for ‘Class G airspace’. Controlled airspace is airspace actively managed and controlled by air traffic controllers. Class G airspace is uncontrolled airspace. Nothing turns on the role of Airservices Australia; the applicants’ helicopter flies in Class G airspace, and they only took issue with the designation of Victoria Police as the ‘controlling authority’ in Class G airspace.
12 The effect of the NOTAMs (and the decision they published) was that the applicants’ helicopter, used to obtain aerial footage for news media broadcast, could not be used in the restricted area, without the approval of Victoria Police.
13 It can be seen from the penultimate line in each NOTAM that CASA’s declaration was to expire at 9.00 am on Sunday 26 September 2021, four days after the NOTAMs were published.
14 After the second NOTAM was published, at about 5.51 pm on 22 September 2021, Victoria Police issued the following media release:
Earlier today Victoria Police made an application to CASA to temporarily restrict air space in the Melbourne CBD.
While this decision was made for operational and safety reasons in relation to the protest activity, we acknowledge the concerns raised by the media.
As a result, Victoria Police will include a provision for media outlets to operate their aircrafts over the CBD.
As part of the conditions, pilots will need to obtain approval from Victoria Police airwing before taking off to ensure there are no safety risks.
Media outlets will also be required to delay publishing any livestream footage from the air by 60 minutes or at the conclusion of the operation.
This is because protestors were actively monitoring aerial livestreams, compromising the police operation and putting the safety of members at risk.
(Emphasis added.)
15 The applicants note that the ‘provision’ and requirements referred to in Victoria Police’s media release were not reflected in either NOTAM, nor were they referred to in the decision that the NOTAMs published.
16 At about 6.00 pm on 22 September 2021, after some preliminary conversations with the Court, the applicants notified the Associate to the Duty Judge, Rofe J, that they sought to have the matter listed the next morning. At 9.30 pm that evening, and in correspondence that followed, the applicants notified CASA that they were seeking urgent judicial review of its decision. The Court listed the matter for an urgent hearing at 9.00 am the next morning, 23 September 2021.
17 The applicants prepared an application overnight and filed and served it, together with a short supporting affidavit, shortly before the hearing commenced at 9.00 am. At the time the application was filed, the applicants did not have access to the actual decision that had been notified in the NOTAMs. Indeed, they did not know whether there had been one or two decisions made by CASA. However, it now appears from an affidavit filed on behalf of CASA that there was only one decision, reflected in the second NOTAM. Again, nothing turns on this, but it explains why the application and reasons for the interlocutory judgment by Rofe J each refer to two decisions.
18 In their application, the applicants invoked the Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and sought judicial review of CASA’s decisions. They sought orders:
(a) quashing the decisions by CASA purportedly made on 22 September 2021 to declare the area within a three nautical miles radius of coordinates 374900S 1445800E to be a restricted area; and
(b) declaring that the decisions were of no force or effect.
19 The grounds for their application were set out in the originating application. In brief, the applicants alleged under s 5(1) of the ADJR Act that:
(a) CASA did not have jurisdiction to make the decisions that it did, in that it had not complied with reg 6 of the Airspace Regulations;
(b) CASA’s purported decisions were an improper exercise of power. This was put on two bases. One basis was that CASA acted at the behest or direction of Victoria Police. The other was legal unreasonableness;
(c) CASA had impermissibly delegated its power to Victoria Police and did not give independent attention to the discretion which is conferred upon it;
(d) a breach of the rules of natural justice occurred in connection with the decision;
(e) there was no evidence to justify the making of the decision; and
(f) the decision was otherwise contrary to law.
20 The applicants sought urgent interlocutory relief to suspend and/or stay the operation of the decisions until the hearing and determination of the proceeding.
21 At the hearing on 23 September 2021, senior counsel for the applicants made submissions in support of their application for interlocutory relief. Senior counsel for CASA appeared, and requested until 4.30 pm that day for his client to put on evidence. He also made some brief submissions. The hearing was adjourned until 12.00 pm at which time Rofe J delivered judgment on the interlocutory application: Nine Network Australia Pty Ltd v Civil Aviation Safety Authority [2021] FCA 1160 (Nine Network v CASA). Her Honour found that (at [6]):
For the reasons articulated in [senior counsel’s] submissions this morning, I consider that there is a serious question to be tried on the application. I consider that on the material presently before the court, the balance of convenience lies with the stay of the Decisions until a substantive hearing of the application can take place.
22 Her Honour granted the stay until further order and indicated that a substantive hearing could be accommodated the following week. Since that time, I have granted at the joint request of the parties who were in negotiation, adjournments of the substantive hearing.
23 The applicants say that while the relief granted by Rofe J was interlocutory, the effect of her Honour’s decision was to grant the applicants final relief. That is because the decision sought to be challenged would expire on Sunday 26 September 2021, and therefore the stay would cover the entire period in which the decision was in effect.
24 Very shortly after her Honour’s orders were made, on the same day, CASA revoked the decision.
DISPOSAL OF THE PROCEEDING, INCLUDING COSTS
25 The parties are now in agreement that in the circumstances, the proceeding should be dismissed. That is because the impugned decision is no longer in effect. In those circumstances, the applicants’ position is that it would not be an efficient use of resources (including judicial resources and the Court’s time) to press the application.
26 However, the applicants submit that CASA should be ordered to pay their costs for the following reasons:
27 First, the applicants say they have, in substance, succeeded in the proceeding. The decision they challenged was stayed by Rofe J for its duration, and then withdrawn by CASA in any event. The applicants accept that ordinarily a Court will not make a costs order where it has not determined a proceeding on the merits at a trial. However, an award of costs is a matter for the Court’s discretion. That discretion is unfettered; no rule or principle should be applied mechanically in the determination of where costs should lie in any particular case. Further, the authorities disclose a number of exceptions to the ‘ordinary’ position. One exception is the case in which a party has had a ‘substantial victory’: Tranchita v Danehill Nominees Pty Ltd (No 2) [2007] WASC 248 per Martin CJ (at [5]-[7]). In Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 (special leave was refused: [2004] HCA Trans 391), Davies AJA (with whom Mason P and Meagher JA agreed) explained (at [5]):
When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked differences in the reasonableness of the actions taken by the parties….
(Emphasis added.)
28 This approach has been applied on many occasions, including in this Court: see, for example, Whitford Grove Pty Ltd v Hughes [2014] FCA 195 per Barker J (at [6] and [31]-[33]). The applicants say that in the present circumstances the applicants’ victory was particularly emphatic.
29 Secondly, the applicants say that CASA has, in substance, surrendered. After Rofe J made the orders and indicated that a final hearing could be accommodated the following week (after the impugned decision would expire in any event), CASA did not ask for a more expedited hearing on the merits (for instance, the following day, 24 September 2021, before the duty judge). It did not seek to urgently appeal her Honour’s orders. To the contrary, and notwithstanding that the impugned decision purported to rely upon the interests of ‘safety’, almost immediately after her Honour’s orders were made, CASA withdrew the decision.
30 It is well-settled that where the Court is satisfied that one party has effectively surrendered or capitulated, it may make a costs order in favour of the other party, notwithstanding that there has been no determination of the proceeding on the merits: see, for example, my judgment in Travaglini v Raccuia [2012] FCA 620 (at [13]). The applicants submit that whatever after-the-fact gloss CASA may seek to put on its reasons for withdrawal of its decision, this is a plain case of surrender or capitulation.
31 In short, the applicants challenged a decision of CASA, and it obtained interlocutory relief that was, in substance, final relief. They say that CASA withdrew its decision in the face of Rofe J’s interlocutory order. In those circumstances, it is said the Court would be justified in making a costs order against it.
32 The applicants seek their costs in a fixed sum, being $58,129, or such other sum the Court considers appropriate. That figure comprises 75% of the costs the applicants expect to incur in the proceeding (exclusive of GST). A fixed sum is sought to bring finality to this proceeding and avoid further disputation and costs, and is consistent with the Court’s preferred practice, as reflected in the relevant practice note.
CASA’S CONTENTIONS
33 CASA opposes the applicants’ submissions on costs. CASA submits that, in circumstances where the proceedings were resolved before there could be any substantive determination of the matters raised in the originating application, and where it cannot be said that CASA’s position was ‘patently hopeless’ or that CASA has surrendered or capitulated, the appropriate order is that there to be no order as to costs, so that each party will bear its own costs: Gribbles Pathology Pty Ltd v Health Insurance Commission [1997] FCA 1414; (1997) 80 FCR 284 per Finkelstein J (at 287F-287G). For the reasons that follow, CASA submits that there is no basis for finding that CASA’s position was ‘patently hopeless’ or that CASA has surrendered or capitulated.
34 CASA notes that the application and supporting material were served on CASA at 8.46 am on 23 September 2021. At 9.00 am on the same day, the applicants’ claim for a stay of the decision was heard. During the hearing of the stay application, CASA asked for the opportunity to file evidence in response to the stay application. However, the Court proceeded to make orders staying the operation of the decision, without allowing CASA to file any evidence. CASA observes that if, as the applicants assert, the effect of the stay ‘was to grant the applicants final relief’, that final relief was granted without permitting CASA a real opportunity to be heard, which would have been an unorthodox approach to the exercise of judicial power. I accept this submission. The fact that her Honour advised the parties the substantive hearing would be heard the following week accords with CASA’s submission.
35 Subsequent to the imposition of the stay, CASA says its withdrawal of the decision was for two reasons:
(a) first, because the decision would expire before the Court could hear and determine the substantive matters raised in the application; and
(b) secondly, to remove the risk of uncertainty as to the ability of pilots and aircraft operators to use the relevant airspace.
36 CASA observes that the main object of the Civil Aviation Act is to ‘establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents’: s 3A. CASA’s functions are prescribed by s 9 of the Civil Aviation Act. They include the function of conducting the safety regulation of, among other things, civil air operations in Australian territory: s 9(1)(a). In performing its functions, CASA must regard the safety of air navigation as the most important consideration: s 9A(1).
37 CASA regulates Australian airspace, in accordance with the Airspace Act and the Airspace Regulations, through the Office of Airspace Regulation (the OAR). The OAR is an office within CASA and part of its role includes managing aircraft operations within Australian airspace. That role includes assessing and implementing Temporary Restricted Area (TRA) applications.
38 When an application for a TRA is made, which can be made to CASA by various government departments or agencies and at short notice, CASA assesses whether it is necessary, in the interests of public safety, the protection of the environment or security, to restrict the flight of aircraft under reg 6 of the Airspace Regulations. If CASA forms an opinion that a restricted area is necessary, CASA may also specify conditions, in accordance with which the flight of aircraft over the relevant area is permitted.
39 The declaration of a TRA, as referred to in reg 6 and reg 7 of the Airspace Regulations, is made by CASA issuing a NOTAM. As noted above, a NOTAM relevantly sets out the location and dimensions of the relevant airspace, any conditions attaching to access to the airspace, a ‘controlling authority’ and the period of the NOTAM’s operation. On 5 October 2021, Mr Martin Holberton affirmed an affidavit, explaining that the relevant ‘controlling authority’ for a TRA will be Airservices Australia where the relevant airspace is ‘controlled airspace’. Where the relevant airspace is not ‘controlled airspace’, the entity that has applied for the TRA will ordinarily be nominated as the ‘controlling authority’. Depending on the conditions specified for the TRA, such an entity may then be authorised to grant or refuse access to the restricted airspace for the period while the TRA is in force.
40 The operational framework now in evidence shows that the OAR is required to make decisions concerning the restriction of aircraft at short notice, and often in consultation with government departments, agencies or other entities, which apply to CASA for the declaration of a TRA.
41 At the time when the originating application was filed and at the time of the 23 September 2021 interlocutory orders, no evidence had been filed by the applicants to contest, or to suggest there was no basis for the opinion of CASA’s delegate that it was necessary to restrict the flight of aircraft in accordance with specified conditions in the interests of public safety. That position is unchanged.
42 Although the applicants’ argument appears to assume that CASA’s opinion was formed on the basis of, or was in some way influenced by, the Victoria Police media release, the media release was issued more than four hours after the decision to declare the TRA and could not have been part of the material, information or other considerations that led to the opinion formed by CASA. The only evidence before the Court concerning the making of the decision shows that a range of matters were identified as justifying the declaration of the TRA and formed the basis of CASA’s opinion in that regard. Those matters included the following:
(a) a letter from Victoria Police, dated 22 September 2021, which stated that live streaming of footage captured by cameras mounted in aircraft posed a serious risk to the safety of Victoria Police officers;
(b) the delegate’s concern that, if Victoria Police were not able to maintain public order, members of the public in the vicinity of the demonstrations would be endangered;
(c) the delegate’s concern that Victoria Police aircraft (most likely helicopters and remotely piloted aircraft) would be deployed to support ground operations;
(d) the delegate’s concern that the demonstrations would likely attract independent operators of remotely piloted aircraft, who might launch those aircraft to take footage of the demonstrations, whether for curiosity or for other reasons; and
(e) the delegate’s concern that a concentration of aircraft, operating at a low level in the Melbourne CBD and nearby, would increase the risk of collision between aircraft or a loss of control incident, which could have potentially catastrophic implications for the aircraft occupants and for persons and property on the ground.
43 Having formed an opinion that the matters above created a risk to public safety, CASA’s delegate decided that it was appropriate to impose a TRA. CASA subsequently issued a declaration in the form of a NOTAM, which was to operate from 1.36 pm on Wednesday, 22 September 2021, to 7.00 pm on Sunday, 26 September 2021.
44 Thus, CASA submits that the only evidence concerning the making of the decision shows that:
(a) the material before CASA provided a basis for CASA to form the opinion that there were ‘public safety’ concerns and that it was necessary to restrict the flight of aircraft over the area stated in the NOTAM in accordance with the condition that the controlling authority would control entry into the area, pursuant to reg 6 of the Airspace Regulations. This answers the allegation that the decision was manifestly unreasonable and the allegation that there was no evidence to justify the making of the decision;
(b) the allegation that CASA exercised the power conferred by reg 6 of the Airspace Regulations at the direction or behest of Victoria Police is contrary to Mr Holberton’s evidence which suggests that an independent assessment of the circumstances was undertaken before deciding to declare the TRA;
(c) CASA probably did not impermissibly delegate its power to Victoria Police and did give independent attention to the discretion which is conferred upon it. The reference in the NOTAM to Victoria Police, as with the reference to Airservices Australia, is not a ‘delegation’ of CASA’s powers:
(i) Regulation 6 of the Airspace Regulations gives CASA the power to declare a TRA, with ‘specified conditions’ for the movement of aircraft. Regulation 7(2) reinforces that conferral of power.
(ii) In this instance, CASA declared a TRA and it specified conditions that both Airservices Australia and Victoria Police would be the ‘controlling authorities’. Conditions of that nature are not an ‘impermissible delegation’, CASA says.
45 CASA points out that a decision under reg 6 of the Airspace Regulations to restrict the flight of aircraft over an area is one that affects all members of the public or a class of the public, rather than having a direct and immediate effect on an individual person. For that reason, such a decision does not attract the obligation to afford procedural fairness or natural justice: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mason J (at 584-585) and Brennan J (at 620); Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; (2008) 160 LGERA 50 per Jagot J (at [104]-[105]); The Village Building Co Ltd v Airservices Australia [2008] FCAFC 57; (2008) 170 FCR 147 per Branson J (at [97]-[98]) and Graham J (at [193]-[194] and [209]). It follows, CASA says, that there is no basis for invoking s 5(1)(a) of the ADJR Act.
46 Any residual contest as to the validity of the decision must be limited to the ground of the decision being ‘otherwise contrary to law’. The applicants have filed no evidence or submissions to explain that ground.
CONSIDERATION
47 The applicants have submitted that they obtained ‘a substantial victory’, that CASA surrendered and that the 23 September 2021 interlocutory orders represented, in effect, ‘final relief’.
48 To characterise the 23 September 2021 interlocutory orders as a substantial victory, or in the nature of ‘final relief’, misstates the manner in which the claim for interlocutory relief was brought before, and decided by, the Court. In particular, that characterisation affords no consideration to the limited opportunity given to CASA either to file evidence in response to the application or to respond to the allegations that were raised.
49 The evidence reveals correspondence between the applicants’ solicitor and the Court, and the applicants’ solicitor and CASA prior to the filing of the application. It is apparent from that material that, from as early as 3.30 pm on 22 September 2021, the applicants’ solicitor had received instructions to investigate a challenge to the decision. From 4.00 pm, the applicants’ solicitor made enquiries with the Court concerning arrangements for an urgent listing before the Court. At no time during that period did the applicants make any enquiries with CASA concerning the making of the decision leading to CASA forming the ‘opinion’ required by reg 6 of the Airspace Regulations.
50 It was not until 9.45 pm on 22 September 2021 that the applicants’ solicitor made first contact with CASA to inform CASA that an urgent judicial review application would be filed later that night. Again, no enquiries were made of CASA concerning the material that supported making the decision, and there was no discussion with CASA about the grounds for the application.
51 It was not until 8.12 am on 23 September 2021 that CASA was provided with a draft version of the application. At 8.46 am on 23 September 2021, the sealed originating application and supporting materials were served. At 9.00 am the application was listed before the Court for hearing.
52 I do not consider it is established that CASA surrendered its position at the interlocutory hearing on 23 September 2021 or after it. Although the Court granted the stay, the order was made in circumstances where CASA had very little time to review the applicants’ filed originating application and supporting materials. The order was also made despite CASA having requested the opportunity to file evidence in response to the application, to be prepared and filed in Court in a matter of hours.
53 The fact that the Court was prepared to grant interlocutory relief to the applicants provides no basis on which to conclude that the applicants obtained a substantial victory, or final relief. It is clear that the Court decided to impose the stay because the balance of convenience favoured that course based on the materials that were before the Court at the time. In reality the hearing was akin to an ex parte hearing.
54 After the stay was imposed, CASA decided to withdraw the decision. The evidence presently available shows that the withdrawal was made for pragmatic considerations, which included the following:
(a) NOTAMs play a critical role in notifying pilots and other persons in Australia’s airspace system about operational safety issues and requirements;
(b) it was not in the interests of clarity for pilots and other airspace system operators for there to be any uncertainty about the operation of the decision; and
(c) the TRA had been declared for a short period only (from 1.36 pm on Wednesday, 22 September 2021 to 7.00 pm on Sunday, 26 September 2021). In relation to this matter, the Court’s 23 September 2021 interlocutory orders included that the matter be referred to a judge for a substantive hearing of the application and were made after midday on 23 September 2021. The following day, 24 September 2021, was a public holiday in Victoria. Thus, the prospect of the parties obtaining both a substantive hearing of the application and final judgment, before the expiry stated in the NOTAM was very low.
55 In this light, it cannot be said that CASA’s withdrawal of the decision represented a surrender or capitulation of CASA’s position, and to use that withdrawal to support an order for costs.
56 Where proceedings are resolved before a hearing on the merits, courts will usually make no order as to costs with the intent that each party bears its own costs: Gribbles (at 287); Tervonen v Minister for Home Affairs (No 2) [2008] FCA 872 per Flick J (at [19]-[22]); and McLellan v Carroll (No 2) [2009] FCA 1540 per Goldberg J (at [19]).
57 In this case, while the Court facilitated an interlocutory hearing on 23 September 2021, it cannot be said that the interlocutory hearing involved a detailed consideration of the merits of the originating application. CASA had no opportunity to file evidence before the stay was granted, and to the extent that it was able to make submissions, those submissions were made with limited opportunity to review and consider the matters raised in the originating application. The Court’s reasons for granting the stay specifically noted that, at the time of the hearing, no material had been filed by CASA: Nine Network v CASA (at [3]). Consistently with that observation, such submissions that had been made on behalf of CASA during that hearing were not expressly discussed.
58 Considering that both the applicants and CASA agree that the proceedings should be dismissed, no order for costs should be made.
59 It cannot be said that it was ‘abundantly clear’ that CASA’s position would have ‘clearly failed’: McLellan (at [19]). As its costs submissions reveal, CASA had substantial arguments to raise against the originating application.
60 If, as CASA contends, there should be no order for the costs of the originating application, it is appropriate, CASA also argues, that the applicants should pay the costs incurred by CASA in responding to the applicants’ application for costs as it should have been obvious to the applicants that the appropriate course was for the Court to dismiss the originating application with each party to bear its own costs. Materials subsequently filed by CASA are said to have clearly demonstrated that CASA had a substantial defence to the allegations raised in the originating application and that there was no basis for the Court to order CASA to pay the applicants’ costs.
61 I am not persuaded that such an order is necessary or appropriate. Although materials later filed by CASA show that it may well have prevailed at a substantive hearing, such an outcome would be by no means a certainty. The parties having compromised on dismissal, it would be a poor use of judicial resources to have a mini-trial on who would probably have won, if the case went on. The better conclusion is that there be no order as to costs in the proceeding.
CONCLUSION
62 At the heart of the applicants’ arguments, and its perception of a need for extreme urgency in bringing these proceedings, was their view of the world that a matter of central importance is that the public should receive news via the media very promptly, if not instantly. But there is another world view in which public safety is an important consideration. Had the applicants delayed for a day in an attempt to understand the CASA position, it is quite possible that they would have come to appreciate, as the evidence now discloses, how public safety in this instance was evaluated. There may be costs risks (fairly minor though they may be here) in acting without such negotiation. On any view, however, it is clear that already a disproportionate amount of ink has been spilt on the costs debate. There has been no clear winner. There will be no order as to costs.
63 On the above basis:
(a) the orders of the Court made in this proceeding on 23 September 2021 will be vacated;
(b) the proceeding will be dismissed; and
(c) there be no order as to costs in the proceeding.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. |
Associate:
