Jandakot Airport Chamber of Commerce Inc v Minister for Infrastructure & Regional Development

Issues 10 The issues raised by the applicant are: (a) should the respondent be entitled to costs in a matter where no formal appearance has been entered? (b) should the respondent be entitled to costs in a public interest case or the instant case where having to pay costs could adversely affect the applicants' capacity to negotiate a fair settlement, or present its case properly? (c) a costs order in the Federal Court may prevent the applicant from proceeding with its AAT application. 11 The first issue concerns the first order sought. The second and third issues concern the second order sought.

Failure to serve notices 12 If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party, the lawyer must file a notice of acting: r 4.03 of the Federal Court Rules 2011 (Cth) (Rules). A respondent to proceedings is also required to file a notice of address for service (r 5.02) that must include, if the party is represented by a lawyer, the lawyer's address as the address for service (r 11.01). The Dictionary to the Rules (Sch 1) defines "file" to mean "file and serve". 13 A notice of acting and a notice of address for service were "filed" with this Court on 23 March 2015 on 30 March 2015 respectively (collectively, notices) on behalf of the respondent. Rule 2.25 provides that a document is taken to have been "filed" if it is lodged in accordance with r 2.21(1). Accordingly, a distinction is drawn between the meaning of "file" and "filed". It was by oversight, it seems, the notices were not served on JACC as required by the Rules until 5 November 2015 (see paras 6, 7, 12 and 13 of the affidavit of Matthew Roser, sworn on 9 November 2015 (Roser affidavit)). 14 Despite this oversight the solicitors for JACC have known since 24 March 2015 that the respondent was represented by Ashurst Lawyers. That firm wrote by email to JACC's solicitors on that date informing them that they were acting in the proceedings instituted in each of the AAT and this Court. They informed JACC that it was an abuse of process to simultaneously pursue merits review of the impugned decision in both the AAT and this Court. Finally, they advised that if the respondent were required to file and serve a defence and/or participate in any directions hearing of a proceeding which was eventually discontinued then the respondent reserved the right to seek its costs in respect of that proceeding. 15 JACC's solicitors responded by email the same day that most probably the AAT matter would be discontinued. That transpired not to be what occurred. 16 Mr Bird from Ashurst represented the respondent at the directions hearing conducted in this proceeding on 14 April 2015. There has been a considerable exchange of correspondence between the parties' solicitors as well as phone conversations from 24 March 2015. 17 Whilst in its interlocutory application JACC seeks to have the Bill of Costs struck out for want of jurisdiction, the issue put in submission is whether or not the respondent's failure to serve the notices on JACC, as required by the Rules, precludes the respondent from recovering costs. 18 Rule 26.12(7) provides as follows: Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued. 19 The Court has not made an order in relation to costs nor is there any consent by the parties concerning costs. 20 Rule 26.12(7) does not require that a party have filed a Notice of Acting nor a Notice of Address for Service before they are entitled to costs. The liability for costs arise by operation of Rule 26.12(7) by virtue of the other party filing a notice of discontinuance unless there is consent by the parties or an order of the Court which provides otherwise. I observe without concluding that it may be that a failure to file a Notice of Acting may be a relevant factor upon the taxation of a Bill of Costs on the grounds that the other party did not know that solicitors had been retained and that they were therefore at risk as to costs. However, such failure does not operate to relieve the discontinuing party from a liability to pay the other party's costs. 21 Counsel for JACC was driven to submit that the respondent, for the purposes of Rule 26.12(7), was not a "party" to the proceeding until an appearance had been entered. This he submits is because no notice of acting was "filed". I reject this submission. The respondent became a party to the proceeding by being named as respondent in the proceeding (originating application) filed by JACC. 22 The application for the first order will be refused.

Should the Court make a no costs order 23 I have treated this as an application for an order to overcome JACC's liability, otherwise, to pay the respondent's costs as provided in r 26.12(7). 24 JACC submits that because the proceedings constituted "public interest litigation" this supports the making of a no costs order. 25 It also contends this should result by reason of the doctrine of promissory estoppel. 26 It further contends, in addition, that because it is a not-for-profit body, any liability to pay the respondent's costs would prejudice its ability to carry on the proceedings in the AAT. 27 JACC relies upon Oshlack v Richmond River Council (1998) 193 CLR 72 in relation to its public interest litigation submission as well as the objects of the Airports Act 1996 (Cth), s 3 of which provides: The objects of this Act are as follows: (a) to promote the sound development of civil aviation in Australia; (b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community; (c) to promote the efficient and economic development and operation of airports; (d) to facilitate the comparison of airport performance in a transparent manner; (e) to ensure majority Australian ownership of airports; (f) to limit the ownership and control of certain major airports; (g) to implement international obligations relating to airports. 28 The respondent submits that this contention is misconceived for the following reasons: (a) it invites the Court to consider the merit and public interest value of arguments that might have been made in this Court. That is not appropriate. Where proceedings are discontinued, costs should be determined without trial: Australian Securities and Investments Commission v Kyriackou [2008] FCA 1860 at [6] and [10]. (b) JACC simply asserts, but does not explain that these proceedings were, and the proceedings in the AAT are, in the public interest. No real attempt is made to engage with the various factors considered by the High Court in Oshlack at [20] and [49] per Gaudron and Gummow JJ and at [136] per Kirby J), nor has any evidence been adduced that would support factual findings that might provide a basis on which to conclude that the litigation was in the public interest. The observations of Burchett J in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171, extracted at para 32 of the applicant's submissions, are apposite, as are the observations of the Full Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84, in particular at [14]-[18]. (c) the proceedings were commenced at the same time as proceedings were commenced in the AAT. JACC's reasons for filing both applications at the same time, and running them concurrently (at least for a period of time), were misguided. It was an abuse of process for the respondent to be brought before both this Court and the AAT in respect of the same decision, at the same time. (d) JACC's originating application, on its face, lacked merit. In particular, it gave no indication as to whether or not it was made under the ADJR Act or s 39B of the Judiciary Act 1903 (Cth), and failed to clearly articulate any jurisdictional errors that might be said to have infected the respondent's decision. (e) the relevance of any prejudice to JACC's financial ability to carry on proceedings in the AAT that might be occasioned by a requirement to pay the respondent's costs in these proceedings is neither explained, nor apparent. Even if it is relevant, JACC and its witness merely assert that JACC's financial capacity to carry on the proceedings in the AAT would be prejudiced. No evidence has been produced as to the applicant's present financial position and usual outgoings, details of its arrangement with its lawyers, and the fees anticipated to be incurred in the AAT. Additionally, JACC was aware, from 24 March 2015, that the respondent would seek to recover its costs of the discontinued proceedings. (f) it would not be appropriate for this Court to engage in speculation as to the strength of, or public interest in, an application for merits review to the AAT, particularly where those proceedings remain on foot. 29 I generally accept the submissions made by the respondent at subparas 28(a), (b) and (e). It is unnecessary to consider the other submissions. 30 JACC is not, on any objective view, a public interest body. Rather, it is in the nature of an industry organisation. According to its Constitution members are drawn from aircraft owners based at Jandakot Airport, lessees of businesses there, businesses and corporations who are part of the aviation industry carried out there, as well as individuals involved in aviation activity there. Its objects include fostering co-operation amongst its members and to represent their interests. It is a typical industry Chamber of Commerce in those respects. 31 Nonetheless JACC submits that the risk of an adverse costs order in this matter is a significant impediment to its access to the AAT and may marginalise its legitimate public interest claim that the respondent has failed to take into account the interests of general aviation in Perth, Western Australia. 32 Even where a body is set up to pursue causes believed by it to be in the public interest, including by court action, this does not mean that it is for this reason alone immune from an adverse costs order: Australian Conservation Foundation at [382]. 33 In any event, even assuming for the sake of argument, that this proceeding might be characterised as public interest litigation, the costs of the respondent for which JACC is liable were not occasioned by the resolution of such litigation adversely to JACC. Rather, they were occasioned by JACC instituting proceedings in respect of essentially the same matter in two forums and then discontinuing the proceeding in this Court. 34 I would not in the exercise of discretion make a no costs order in this proceeding.

Estoppel 35 JACC submits the respondent should be estopped from receiving an order for costs. JACC submits that the respondents should be estopped from reliance on its failed attempt to make a formal appearance in this proceeding. It was not explained and there is, in my opinion, no basis in principle to support such a submission. At the threshold, the respondent is not the beneficiary of a costs order nor has it relied upon its failure to serve its Notice of Acting. It simply has the benefit of Rule 26.12(7) as a result of JACC's discontinuance of the proceeding. 36 This submission is otherwise flawed. It depends, foundationally, upon the failure by the respondent to serve the notices. Mr Stokes, counsel for JACC deposes that his client would have discontinued the proceeding in this Court had it known that the respondent had engaged solicitors before costs became an issue. That is plainly not correct. As I mentioned JACC knew since 24 March 2015 that the respondent had engaged Ashurst and was in communication with them across a range of issues from that date. A lawyer from Ashurst appeared at the directions hearing. Despite this JACC did not file its notice of discontinuance until 30 April 2015. 37 JACC submits that the doctrine of promissory estoppel is engaged. Put shortly, JACC contends that it relied to its detriment upon a promise by the respondent. It is by no means clear from JACC's generalised submissions just what the operative promise was. Rather it is said that JACC "believed" that the respondent had not formally appeared and was not formally represented by a lawyer. No-one from JACC testified to this effect. In any event, its belief is not the respondent's promise. 38 Even if promissory estoppel were available to disentitle a respondent from relying upon r 26.12(7), which I very much doubt, this submission fails on the facts. 39 I will not, upon this ground, make an order that there be no order as to costs. 40 The interlocutory application will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.