DHI22 v Qatar Airways Group Q.C.S.C

1. The applicants seek an order permitting them immediately to tax their costs of (a) the first respondent's amended interlocutory application dated 24 May 2023 and the third respondent's interlocutory application dated 30 June 2023 in this proceeding (together interlocutory applications), and (b) the interlocutory applications in their appeal to the Full Court.
2. The relevant costs orders are Order 2 of the orders made on 22 August 2025 in this proceeding, and Orders 5(d) and 6 of the orders made on 24 July 2025 in the Full Court, being proceeding NSD 529 of 2024.
3. The first and third respondents relied on a short affidavit from their solicitor, Simon Morris, and the parties exchanged short outlines of written submissions. The parties were otherwise content for the application for the applicants' costs to be taxed immediately to be determined on the papers.
4. Rule 40.13 of the Federal Court Rules 2011 (Cth) (Rules) provides that where an order for costs is made on an interlocutory application:

...the party in whose favour the order is made must not tax those costs until the proceeding in which the order is made is finished.

1. The Court, however, may make an order that an order for costs of an interlocutory application be taxed immediately, pursuant to r 1.34, which allows the Court to dispense with compliance with any of the Rules, or r 1.35, which allows the Court to make an order inconsistent with the Rules: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 at [5] (Perram J).
2. The "twin policy considerations" underpinning the ordinary rule in r 40.13 were identified in Watson v Kriticos (Costs Payable Forthwith) [2022] FCA 4 at [6] (Perram J), in the following terms:

... first, that it is generally undesirable that the parties should be exposed to multiple taxation processes during the life of one proceeding; and second and relatedly, that during the balance of the litigation, costs orders may be made in the opposite direction which will normally be capable of being set-off against earlier costs orders.

1. The applicants submit that the interests of justice justify a departure from r 40.13 for the following reasons.
2. First, the final determination of the proceeding is far away given the proceeding is not listed for hearing until June 2026, the hearing is likely to raise difficult issues concerning the application of the Montreal Convention and in respect of applicable domestic law such that it is unlikely judgment will be delivered much before the end of 2026, and appeals may follow.
3. Second, the discrete issues raised by the interlocutory applications have been entirely resolved, namely in short, applications for summary judgment or for service to be set aside on the basis that the applicants' claims had insufficient prospects of success.
4. Third, there is no risk of the respondents being "forced out of court" or their financial resources being exhausted before the merits of the proceeding can be determined.
5. I am not persuaded that an order should be made that the applicants' costs of the interlocutory applications in this proceeding should be taxed immediately, essentially for the reasons advanced by the respondents in their written outline of submissions.
6. First, the interlocutory applications raised substantive and significant issues but did not raise discrete issues for determination. The respondents might have been ultimately unsuccessful in obtaining summary judgment or related relief, but the contentions advanced and the issues raised in the interlocutory applications are indistinguishable from those that will need to be determined at the final hearing.
7. Second, the "twin policy considerations" underpinning r 40.13, as identified in Watson, may well be engaged in this proceeding, not least because the second and fifth applicants, who have not brought claims under the Montreal Convention, can only succeed in any claim against the first respondent if the Montreal Convention claims advanced by the first, third and fourth applicants fail. Hence there is a real possibility of the parties being exposed to multiple taxation processes and costs orders being made in opposite directions which would be capable of being set off against each other. Any potential set off of the costs of the interlocutory applications in this case is particularly significant given the extensive oral and written submissions advanced by the parties in the determination of the interlocutory applications.
8. Mr Morris annexes to his affidavit a letter from the solicitors for the applicants dated 1 October 2025 which included the following statement in para 7:

We confirm that our clients have not been in a financial position to make any significant payment of our fees, or counsel fees, since the commencement of the proceeding.

1. Given this confirmation provided by the solicitors for the applicants, and the absence of any evidence from the applicants as to their financial position, it cannot be assumed that the applicants would necessarily be in a financial position to meet any costs order if they were ultimately unsuccessful at the final hearing, and thus there is a risk that the respondents would lose the benefit of any consequential offsetting costs order if the costs of the interlocutory applications were taxed immediately.
2. Third, the likely time period in which the proceeding will be finally determined, even allowing for appeals, could not be characterised as an unusual or exorbitant delay given the complexity of the matters in issue in the proceeding and in itself is not sufficient to justify a departure from the ordinary rule that costs orders made on interlocutory applications should not be taxed immediately.
3. Finally, I note that any application for an order that the costs ordered by the Full Court are to be taxed immediately would be more appropriately made to the Full Court as the costs orders were made pursuant to an exercise of appellate jurisdiction.
4. For these reasons, the application made by the applicants for their costs of the interlocutory applications to be taxed immediately must be dismissed and the applicants are to pay the respondents' costs of that application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Halley.