Civil Aviation Safety Authority v Boatman

WHITLAM J 1 The appeal in this matter succeeded on a question of law, and the respondents were ordered to pay the costs incurred by the appellant ('CASA') in relation to the appeal: Civil Aviation Safety Authority v Boatman [2004] FCAFC 336. The respondents have now applied for a certificate under s 6(1) of the Legal Proceedings (Costs) Act 1981 (Cth) in respect of those costs and their own costs in relation to the appeal. 2 The appeal involved the construction of s 30DE of the Civil Aviation Act 1988 (Cth), which the respondents contend had not previously been subject to judicial scrutiny. Accordingly they submit that they are entitled to a costs certificate on the basis that the appeal was 'of public importance' and 'went beyond the limited concerns of the parties to the proceeding'. 3 CASA's application for an order under s 30DE has now been heard in accordance with the remittal made on the appeal. On 21 March 2005 Madgwick J refused that application. The respondents also rely on such refusal as a ground for the grant of a costs certificate. 4 The basic principles to be applied in the exercise of the discretion to grant a costs certificate were explained in Bullock v Federated Furnishing Society of Australasia (No 2) (1985) 5 FCR 476. More recently, Kirby J has exercised the discretion under s 6 by reference to the manner in which a similar discretion is exercised under suitors' fund statutes: Cramer v Davies (1997) 72 ALJR 146 at 151 [20]. 5 In the present case CASA contends that the respondents have been guilty of disentitling conduct. I think this is correct. It was their action in moving for summary dismissal that procured the error by the primary judge. The suspension of the respondents should have continued until the application under s 30DE was heard on its merits. The summary dismissal of that application provided them with respite of that suspension, thus giving a quite unjustified 'positive advantage'. Further, the hearing of their motion was in no sense a 'test' case. The motion was, as CASA correctly points out, an attempt to procure advantage from the confusion surrounding the earlier making of consent orders. In all of the circumstances I decline to exercise the discretion under s 6 in favour of the respondents, and I refuse to grant a costs certificate. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.