Case: Hanisch v Strive Pty Ltd (1997) 74 FCR 384
Outcome: cited
An order made pursuant to O 62A r 1 applies equally to all parties to the proceedings ( Hanisch v Strive Pty Ltd (1997) 74 FCR 384 at 389 per Drummond J). 6 The parties agree on many of the factors to be taken into account in the exercise of the Court's discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include: &#8226; the timing of the application ( Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]); &#8226; the complexity of the factual or legal issues raised in the proceedings ( Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J); &#8226; the amount of damages that the applicant seeks to recover ( Hanisch at 387) and the extent of any other remedies sought ( Flew at [48]); &#8226; whether the applicant's claims are arguable and not frivolous or vexatious ( Flew at [15]); &#8226; the undesirability of forcing the applicant to abandon the proceedings ( Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and &#8226; whether there is a public interest element to the case ( Woodlands at 146; Flew at [23], [47]). 7 Virgin contends that, in addition, the Court should take into account: &#8226; the costs likely to be incurred by the parties in the preparation for, and hearing of, the matter ( Flew at [48]); &#8226; whether the party opposing the making of the order has been uncooperative and/or has delayed the proceedings ( Dibb at [17]; Hanisch at 390); and &#8226; '... any other matters which may go towards establishing that there should be a departure in advance from the usual rules as to quantification of the amount of costs to be payable by the ultimately unsuccessful party ' ( Flew at [48]). 21 Virgin submits that the trial will be complex and estimates that the party/party costs arising from the hearing are likely to be in the order of $39,000. This estimate does not include costs associated with discovery, preparation of evidence and preparation for trial. Virgin contends that all of the issues of fact and law are complex and thus outside the intended application of O 62A r 1 ( Hanisch at 387) and that the preparation of the evidence will be both complex and costly. 22 In relation to discovery Virgin points to what it describes as the broad, ambiguous and/or irrelevant categories of disclosure sought by the applicants. Virgin says that the applicants' reliance on the current ITC does not necessarily narrow the scope of discovery, as those criteria also formed part of the earlier ITC. The reasonableness of those criteria may, Virgin says, involve consideration of the reasons why they were initially adopted by Virgin. This may require evidence from past and present employees. 23 Virgin says that it will necessarily adduce extensive evidence in response to the applications concerning: &#8226; the history associated with the development of the ITC and the reasons why the ITC were introduced; &#8226; changes in the policy that took place on 30 September 2003, 1 June 2006 and 21 June 2007; &#8226; an explanation of the implementation of the ITC; &#8226; the physical movements involved in putting an aircraft seat belt on, donning a life jacket, putting on an oxygen mask and responding to cabin crew directions; &#8226; what can occur in certain emergency situations; &#8226; responses that Virgin's staff are required to make during mid-air turbulence, mid-air cabin decompression and emergency evacuation from the aircraft including water ditching; &#8226; the effect on those procedures of an inability to comply with the ITC; and &#8226; policies implemented by other airlines.