Saitta Pty Ltd v Commonwealth [2001] FCA 8 (12 January 2001)

Last Updated: 15 January 2001

FEDERAL COURT OF AUSTRALIA

Saitta Pty Ltd v Commonwealth [2001] FCA 8

COSTS - costs of hearing of notices of motion - applications dismissed - failure by respondents to concede point during hearing of motions - hearing extending into second day - whether applicants should be required to pay costs of second day.

SAITTA PTY LTD (ACN 005 387 833) v COMMONWEALTH OF AUSTRALIA, THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care), ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) and AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652)

V 732 of 1999

NEVISKIA PTY LTD (ACN 006 552 763) v COMMONWEALTH OF AUSTRALIA, THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care), ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) and AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652)

V 735 of 1999

WEINBERG J

12 JANUARY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 732 of 1999

BETWEEN:	SAITTA PTY LTD (ACN 005 387 833) Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care) Second Respondent ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) Third Respondent AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652) Fourth Respondent
AND BETWEEN:
	V 735 of 1999
BETWEEN:	NEVISKIA PTY LTD (ACN 006 552 763) Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care) Second Respondent ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) Third Respondent AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652) Fourth Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	12 JANUARY 2001
WHERE MADE:	MELBOURNE

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 732 of 1999

BETWEEN:	SAITTA PTY LTD (ACN 005 387 833) Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care) Second Respondent ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) Third Respondent AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652) Fourth Respondent

AND BETWEEN:

V 735 of 1999

BETWEEN:	NEVISKIA PTY LTD (ACN 006 552 763) Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care) Second Respondent ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) Third Respondent AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652) Fourth Respondent

JUDGE:	WEINBERG J
DATE:	12 JANUARY 2001
PLACE:	MELBOURNE

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.

Associate:

Dated: 12 January 2001

Matter V 732 of 1999:
Counsel for the Applicant:	Mr B.F. Monotti
Solicitors for the Applicant:	Wilson Potter Nicholson
Counsel for the Respondent:	Mr K.H. Bell QC, with Mr S.G.E. McLeish
Solicitors for the Respondent:	Clayton Utz
Matter V 735 of 1999:
Counsel for the Applicant:	Mr B.F. Monotti
Solicitors for the Applicant:	Wilson Potter Nicholson
Counsel for the Respondent:	Mr K.H. Bell QC, with Mr S.G.E. McLeish
Solicitors for the Respondent:	Clayton Utz
Date of hearing:	8 and 9 May 2000
Date of judgment:	12 January 2001