Saitta Pty Ltd v Commonwealth [2001] FCA 8 | Case summary

THE COURT ORDERS THAT: 1. In proceeding V 732 of 1999, the applicant pay the respondents' costs of and incidental to the notice of motion dated 24 March 2000, except for the costs of the hearing of 9 May 2000. 2. In proceeding V 735 of 1999, the applicant pay the respondents' costs of and incidental to the notice of motion dated 24 March 2000, except for the costs of the hearing of 9 May 2000. 3. There be no order as to costs in respect of the hearing of 9 May 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT 1 On 2 November 2000 I ordered that the application in each of these proceedings, V 732 and V 735 of 2000, be dismissed. At that time I also ordered that each applicant and the respondents in each proceeding file a brief outline of submissions in relation to any orders for costs which should be made arising out of the notices of motion dealt with in my reasons for judgment dated 2 November 2000. 2 As indicated in those reasons, the respondents were successful on all but one ground of the motions before me. The ground in relation to which they were unsuccessful was the challenge made to the jurisdiction of the Court to hear and determine the matters raised by the applications. 3 As outlined in my previous reasons for judgment, during the course of the hearing of the notices of motion the applicants foreshadowed that they intended to amend their applications to invoke as a basis for jurisdiction not only s 39B(1A)(c) of the Judiciary Act 1903 (Cth), but also s 39B(1) of that Act. It was open to the respondents, once the applicants had given this indication, to concede that their objection to jurisdiction was no longer well-founded, even if it previously had been. Instead, the respondents elected to press the point. As a result the hearing of the notices of motion was extended to just short of one and a half days, rather than the allocated one day. 4 The respondents were successful in obtaining the relief sought in their notices of motion, and the ordinary course is that costs follow the event. However, in the present circumstances I am mindful of the fact that the respondents did not make any concession in regard to the jurisdiction point and they were ultimately unsuccessful on that point. Indeed, they were ultimately unsuccessful on the jurisdiction point even in so far as the applicants relied upon their initial basis for jurisdiction, putting to one side their ultimate reliance upon s 39B(1) of the Judiciary Act. I do not accept the respondents' submission that the jurisdiction point was not significant in the overall costs of the hearing. The point was argued at some length before me, which resulted in a lengthier hearing than was ultimately necessary. 5 In these circumstances, I think it appropriate to order that the applicants pay the costs of the respondents of and incidental to the notices of motion dated 24 March 2000, but not any costs incurred on 9 May 2000, the second day of the hearing before me. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Saitta Pty Ltd v Commonwealth

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