Aussie Airlines Pty Ltd v Australian Airlines & Ors [1995] FCA 765

Aussie Airlines Pty Ltd v Australian Airlines & Ors [1995] FCA 765

The standing question and the "new entrant" question substantially overlapped, and the "new entrant" question was central to all the applicant's claims: an adverse determination would end the litigation, while a favourable determination was likely for practical reasons to resolve the dispute. Separate determination was therefore appropriate. Security for costs was required because the applicant did not dispute that it could not satisfy a costs order, had not shown a strong enough case to avoid security, and had not proved that an order for security would frustrate litigation by reason of impecuniosity of those who stood behind and would benefit from the applicant.

Jurisdiction
Australia
Judgment Date
15 September 1995
Procedural Posture
Federal Court Proceeding Concerning Declaratory Relief, Alleged Contraventions of S. 46 of the Trade Practices Act 1974 (cth), and Claims Arising From Airport Terminal Facility Leases / Interlocutory Applications for Leave to Amend, Separate Determination of Questions Under O. 29, R. 2 of the Federal Court Rules, Further Particulars, Discovery, and Security for Costs
Outcome
Leave to amend granted, separate determination of questions ordered, and security for costs ordered; action to be stayed if security not provided.
Legal Topics
['separate Hearing of Issues' 'standing to Seek Declaratory Relief' 'security for Costs' 'domestic Aviation Industry New Entrant' 'airport Terminal Facilities Leases' 'section 46 Trade Practices Act 1974 (cth)']
['practice and Procedure' 'trade Practices' 'aviation' 'contracts and Leases'] ['separate Hearing of Issues' 'standing to Seek Declaratory Relief' 'security for Costs' 'domestic Aviation Industry New Entrant' 'airport Terminal Facilities Leases' 'section 46 Trade Practices Act 1974 (cth)']

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Procedural Posture

Federal Court Proceeding Concerning Declaratory Relief, Alleged Contraventions of S. 46 of the Trade Practices Act 1974 (cth), and Claims Arising From Airport Terminal Facility Leases / Interlocutory Applications for Leave to Amend, Separate Determination of Questions Under O. 29, R. 2 of the Federal Court Rules, Further Particulars, Discovery, and Security for Costs

Legal Issues

  1. 1 ['Whether the applicant should have leave to amend its amended application to seek declaratory relief that it was a "new entrant to the domestic aviation industry" within the meaning of the head leases.' 'Whether the applicant\'s standing to seek declaratory relief and whether it was a "new entrant" should be determined separately under O. 29, r. 2 of the Federal Court Rules.' "Whether the applicant should provide security for the first and second respondents' costs." 'Whether the alleged public importance of deciding the "new entrant" issue justified refusing security for costs.']

Ratio Decidendi

The standing question and the "new entrant" question substantially overlapped, and the "new entrant" question was central to all the applicant's claims: an adverse determination would end the litigation, while a favourable determination was likely for practical reasons to resolve the dispute. Separate determination was therefore appropriate. Security for costs was required because the applicant did not dispute that it could not satisfy a costs order, had not shown a strong enough case to avoid security, and had not proved that an order for security would frustrate litigation by reason of impecuniosity of those who stood behind and would benefit from the applicant.

Court Disposition

Leave to amend granted, separate determination of questions ordered, and security for costs ordered; action to be stayed if security not provided.

Orders

  • ['The applicant was granted leave to amend its amended application to claim declaratory relief that it was "a new entrant to the domestic aviation industry" within the meaning of that expression as used in the definition of "third party carrier" in each of the head leases referred to in paragraphs 8 and 10 of the...