FEDERAL COURT OF AUSTRALIA

Burragubba v State of Queensland (No 2) [2018] FCAFC 65

ORDERS

THE COURT ORDERS THAT:

1.    the appellant pay the first and second respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

history

1    On 25 August 2017 the Court dismissed an appeal in this matter, initially ordering that the appellant pay the respondents’ costs of the appeal. The respondents were Adani Mining Pty Ltd (“Adani”), the State of Queensland (“Queensland”) and the National Native Title Tribunal (the “NNTT”). The NNTT submitted to any order that the Court might make in the proceeding. On the same day, the Court, similarly constituted, gave judgment in appeal no QUD 726 of 2016 (the “ACF appeal”), dismissing that appeal and ordering that the parties provide written submissions as to costs. The appellant in those proceedings was Australian Conservation Foundation Incorporated (“ACF”). The respondents were the Minister for the Environment and Energy (the “Minister”) and Adani. The Court subsequently ordered that the appellant pay each respondent’s costs of the appeal. See Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (No 2) [2017] FCAFC 216.

2    Following the publication of the judgment in the ACF appeal on 25 August 2017, the appellant applied for an order vacating the order as to costs in this appeal, and directions as to the filing of submissions as to costs. Dowsett J made such orders. The Court now deals with the submissions which were subsequently filed.

3    At first instance, these proceedings involved judicial review of a decision of the NNTT pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). At first instance the appellant advanced numerous grounds for review. The primary Judge dismissed all grounds. On appeal, the appellant advanced 10 grounds of appeal. In the Court’s reasons, we identified grounds 1-6 as dealing with the proper construction and application of s 5 of the ADJR Act, and grounds 7-10 as dealing with the appellant’s entitlement to such judicial review, an issue which depended upon the proper construction of the Native Title Act 1993 (Cth) (the “Native Title Act”). The appeal failed on all grounds.

4    Queensland and Adani had filed notices of contention, asserting that the appellant was not a person aggrieved for the purposes of the ADJR Act, and so could not seek judicial review under s 5 of that legislation. Concerning this point, this Court said, at [171]-[173]:

171    The term “person aggrieved” in the ADJR Act includes a person whose interests are adversely affected by the decision (s 3(4) of the ADJR Act). In Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394 per Hayne and Bell JJ (at [61]) their Honours noted “interests” may be broader than legal interests, such as economic interests (footnotes omitted):

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (beyond (84)) its effect on the public at large. Here, the effect was said to be economic.

172    Argos also establishes that regard must be had:

to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant [may] otherwise [be] a person aggrieved.

173    In this instance the appellant brought the proceedings in his own capacity, not as a “native title party” as that term is properly construed. The decision of the Tribunal, according to the State, would have no legal and practical effect on any interests of the appellant. It would only ensure that the grants of the mining leases are not invalid to the extent that they would “affect” or be inconsistent with native title (to use the terminology of s 227 of the Native Title Act): see Lardil Peoples v Queensland (2001) 108 FCR 453. But the appellant has not established what native title rights and interests he holds, nor has he established how those rights may be affected.

5    Although the Court was inclined to doubt the correctness of the submissions by Queensland and Adani concerning the appellant’s standing, we considered that it was unnecessary that we resolve that question.

SUBMISSIONS AS TO costs

6    Both Queensland and Adani submit that costs of the appeal should follow the event. The appellant submits that there should be no order as to costs. At para 4 of his submissions, the appellant asserts:

4.    The Appellant submits that the following principles are relevant to the Court’s exercise of the costs discretion under s.43 of the Federal Court of Australia Act 1976 (Cth):

(a)    there is no automatic rule that costs follow the event;

(b)    in Oshlack v Richmond River Council, Gaudron and Gummow JJ explained that the “public character” of litigation may represent special circumstances justifying the departure from the usual order that costs follow the event, and identified three factors which demonstrated “public character”, being that:

(i)    the Appellant’s motivation in litigation was to secure obedience to environmental law, not personal gain;

(ii)    a significant number of members of the public shared the Appellant’s stance, and in that sense there was a “public interest” in the outcome of the litigation; and

(iii)    the basis of challenge was arguable and raised “significant issues” of interpretation and administration of relevant legislation;

(c)    proceedings which raise a novel question of “much general importance” may justify the Court declining to order costs against an unsuccessful party.

    (Footnotes omitted.)

7    On that basis, the appellant submits that in these proceedings:

    he has not pursued a personal interest, but rather has sought to protect the interests of certain families, the members of which were included in the application for a determination as to the existence of native title;

    his motive was to ensure the proper administration of the Native Title Act;

    it may be inferred that other members of the relevant families shared his views;

    his grounds of appeal raised novel, and potentially important questions concerning the operation of the ADJR Act and the Native Title Act;

    his application raised arguable grounds of considerable importance in the future operation of Pt 3 of Subdiv P of the Native Title Act; and

    his application engaged the public interest as it sought to highlight issues relating to the purported economic and employment benefits of Adani’s proposed coal mine, which issues had garnered the public interest in relation to environmental and cultural impacts of the proposed mine.

8    As to the submission that the appellant was not pursuing a personal interest, it is clear that he was doing so, albeit that in his view, he was also acting on behalf of a wider group. There is no evidence that the families generally agreed with his view, or that they were unable to express their own views in any proper forum.

9    As to the proper operation of the ADJR Act and Native Title Act, it cannot be the case that every challenge to the construction of either Act, or to any decision as to their individual or collective operations can be classified as an attempt to ensure their proper administration. Our reasons for dismissing the appeal demonstrate that, by reference to existing authorities and to the language of the statute, the appellant’s case is unmeritorious. We see no basis for concluding that his interest in bringing proceedings was the proper administration of the Native Title Act or the ADJR Act, rather than the vindication of his own views or advancement of his own interests.

10    These comments dispose of the appellant’s submissions, save for those concerning the public interest in highlighting and interrogating “issues related to the purported economic and employment benefits” of the Adani mine and in its “environmental and cultural impacts”. These matters were, in effect, dealt with in connection with grounds 1-6 at [63]-[66] of our reasons for dismissing the appeal. Whilst the appellant may have raised questions concerning those matters, his submissions on appeal went to questions of procedural fairness and the weight attributable to evidence concerning those matters. There was also an associated allegation that Adani had made dishonest or misleading statements to the NNTT. The appellant failed on these issues, both at first instance and on appeal.

11    Although there may have been general public interest in questions of economic and employment benefits and environmental and cultural impacts, it is difficult to conclude that such interest would lead to the conclusion that having failed at first instance, and on appeal in connection with these matters, the appellant should not have to pay the respondents’ costs of the appeal. As we noted in connection with the costs of the ACF appeal, an unsuccessful applicant at first instance may be spared an unfavourable order as to costs for reasons such as those advanced by the appellant. It does not follow that in the event of an unsuccessful appeal, such considerations will again lead to the conclusion that there should be no such order. Assertions that a party has commenced and prosecuted proceedings in the public interest are easily made, but not so easily proven. Sometimes, such idealism may be self-evident. However that is not presently so. The appellant’s case had little merit and was comprehensively dealt with by the primary Judge.

12    In those circumstances, we order that the appellant pay the first and second respondents’ costs of the appeal.

Associate:

Dated:    26 April 2018