FEDERAL COURT OF AUSTRALIA

Dates v Minister for Environment, Heritage and the Arts (No 3) [2010] FCA 354  

THE COURT ORDERS THAT:

1.                  The applicant pay the respondent’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             By amended application the applicant sought review under s 5 of the Administrative Decisions (Judicial Review) Act 1975 (Cth) and s 39B of the Judiciary Act 1903 (Cth) of three decisions of the respondent Minister made under ss 9, 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (“the Act”), respectively.

2                                             On 24 March 2009 I ordered that the application be dismissed.  I also ordered that costs be reserved and that the parties file and serve any submissions on costs within seven days.

3                                             The Minister seeks an order that the applicant pay his costs of the application.  The Minister has filed submissions in support of his application.  No submissions have been received from the applicant.

4                                             Section 43 of the Federal Court Act 1975 (Cth) confers on the court a discretionary power to award costs.  The power is broad and is to be exercised judicially (Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ).  The usual result is that costs follow the event and that a successful party in litigation is entitled to an award of costs in his favour.

5                                             In the present case, as the Minister submits:

·                    The Minister succeeded on the application, including the applicant’s application for interlocutory relief.

·                    The application raised no novel or important questions of law.  No issue concerning the proper construction of the provisions of the Act with which the application was concerned was raised in the application.

·                    Each ground of the application, other than a ground of breach of procedural fairness, was essentially an attack of the merits of the Minister’s decision.  The ground raising a breach of procedural fairness turned upon factual issues concerning the decision making process.

·                    The applicant has not claimed or established that any public interest has been served in the bringing of this litigation and, in any event, there is no general ‘public interest’ exception to the usual rule that costs follow the event (see Oshlack generally).

·                    The applicant pressed his challenge to the Minister’s s 9 decision in the face of a clear finding by Foster J in Anderson v Minister for the Environment, Heritage and the Arts [2010] FCA 57 as to the futility of such a challenge.

·                    There are no circumstances which would disentitle the Minister to an award of his entire costs in circumstances where the applicant’s litigation has entirely failed.

Conclusion

6                                             The applicant should pay the Minister’s costs of the application.

Associate:

Dated:         14 April 2010