FEDERAL COURT OF AUSTRALIA

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1206

THE COURT ORDERS THAT:

1.    Swiss Aluminium Australia Limited (ACN 008 589 099) and Gove Aluminium Limited (ACN 000 640 353) be joined as second and third respondents to this proceeding under s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on condition that they shall bear their own costs of the proceeding and no other party will seek to recover any of its costs of the proceeding from them.

2.    Northern Land Council and Arnhem Land Aboriginal Land Trust be joined as the fourth and fifth respondents to this proceeding.

3.    The title of the proceeding be amended accordingly.

4.    The first respondent file any affidavits in answer on or before 3 November 2011.

5.    The second and third respondents file any affidavits in answer on or before 17 November 2011.

6.    The fourth and fifth respondents file any affidavits in answer on or before 24 November 2011.

7.    The applicant file any affidavits in reply on or before 1 December 2011.

8.    The applicant file any written submission on which he intends to rely at the hearing of this matter on or before 7 February 2012.

9.    The first respondent file any written submissions on which she intends to rely at the hearing of this matter on or before 21 February 2012.

10.    The fourth and fifth respondents file any written submissions on which they intend to rely at the hearing of this matter on or before 28 February 2012.

11.    The second and third respondents file any written submissions on which they intend to rely on or before 6 March 2012.

12.    The applicant file any submissions in reply on or before 15 March 2012.

13.    To the extent practicable, affidavits and submissions filed by the second, third, fourth and fifth respondents must not duplicate affidavits or submissions of any other respondent.

14.    The parties file lists of authorities and legislation on or before 15 March 2012.

15.    The applicant’s application be listed for trial commencing on 20 March 2012, with an estimate of 2 days.

16.    There be liberty to apply on reasonable notice.

17.    The costs of the directions hearing of 10 October 2011, including the interlocutory applications for the joining of further respondents, be reserved.

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

REASONS FOR JUDGMENT

1        By an originating application dated 10 August 2011, the applicant seeks judicial review of decisions of the Minister for Families, Housing, Community Services and Indigenous Affairs (“the Minister”) to consent, under s 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (“the ALRA”), to the grant of a lease – the Residue Disposal Area Lease (“the Lease”) – over land in the Gove Peninsula; and to approve, under s 27 of the ALRA, the Northern Land Council (“the NLC”) and the Arnhem Aboriginal Land Trust (“the Land Trust”) entering into an agreement – the RTA Gove Traditional Owners Agreement (“the Agreement”). I refer to these two decisions hereafter as “the Minister’s Decisions” or “the Decisions”.

2        The Agreement involved the payment of an amount exceeding $1 million. The parties to the Agreement are Swiss Aluminium Limited (“Swiss Aluminium”), Gove Aluminium Limited (“Gove”), the NLC, the Land Trust, Galarrwuy Yunupingu for the Gumatj Clan, Bakamumu Marika for the Rirratjingu Clan, and Djaly Gurruwiwi for the Galpu Clan. The parties to the Lease are the NLC, the Land Trust, Swiss Aluminium and Gove.

3        By an interlocutory application dated 14 September 2011, the NLC and the Land Trust applied to be joined as respondents. Their application was supported by the affidavit of Kirsty Howey sworn on 14 September 2011. At the hearing on 10 October 2011, the applicant accepted that the NLC and the Land Trust should be joined as parties to the proceeding. The dispute between the applicant and these two entities concerned the conditions that should accompany their joinder. The applicant argued that the NLC and the Land Trust should be joined only on condition that they bear their own costs. At the conclusion of the hearing, I ordered that the NLC and the Land Trust should be joined without the costs condition sought by the applicant. I stated that I would deliver reasons later. These are my reasons.

4        To understand the parties’ competing submissions, it is first necessary to say something further about the applicant’s judicial review application. The applicant claims to be aggrieved by the Decisions because “he is a member of a Ringitj nation (the Dhurili Nation) which is an alliance of traditional Aboriginal clans established under the traditional laws and customs of the Yolgnu people of North Eastern Arnhem Land”; and authorised by the Dhurili nation to bring the proceeding on their behalf, in order to protect their rights and interests as traditional owners, or as Aboriginal persons affected, in respect of the relevant land for the purposes of the ALRA.

5        Amongst other things, the applicant seeks an order that the Minister’s Decisions be set aside. The applicant also seeks a declaration that “any agreement entered into by [the Land Trust]” and/or [the NLC], requiring the [Minister’s] consent or approval is void as having been made contrary to the requirements set out under the ALRA”.

6        The applicant’s grounds include that the Minister erred in law “by concluding that there were no matters that she was required to consider under section 19(4A) of the ALRA in making her decision to consent”; “by failing to take into account relevant considerations in granting her consent and approval, namely, whether the [NLC] had complied with the duties imposed on it by section 23(3) of the ALRA”; and that the Minister could not have been satisfied that the NLC had discharged its duties under s 23(3).

7        The applicant alleges that the Minister: (a) acknowledged that she had been requested by the NLC not to give the authorised representatives of the Dhurili Nation (“the Representatives”) a copy of the Lease or the Agreement … in order for them to understand and comment on its terms and impact; (b) was aware that the Representatives had not been provided with a copy of the Lease or the Agreement; (c) was aware the Representatives had sought assistance from the NLC and that that request had not been determined prior to her consent and approval being granted; (d) was aware that the NLC had failed to provide the Dhurili Nation with the materials on which it relied to prepare its submission to her and on which it had decided that the Dhurili Nation were not traditional owners for the purposes of the ALRA; (e) was aware that the Dhurili Nation contended that no proper consultation for the purposes of the ALRA had been undertaken by the NLC; (f) was aware of the delays caused by the NLC which prejudiced the Dhurili Nation’s rights and interests under the ALRA; and (g) ought to have been aware that the conduct of the NLC towards the Dhurili Nation evidenced that it had failed to perform its duties under s 23(3) of the ALRA in accordance with the requirements of s 23AA. See paragraphs (a)-(g) of Ground 3 of the originating application.

8        In an interlocutory application dated 28 September 2011, Swiss Aluminium and Gove applied to be joined as parties to the proceeding. Their application was supported by an affidavit of Michael Illott sworn on 15 September 2011. The applicant subsequently consented to Swiss Aluminium and Gove being joined under s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) on conditions. These conditions were that they bear their own costs of the proceeding; that no other party seek to recover any of its costs of the proceeding from them; and that, to the extent practicable, they not duplicate the evidence or submissions filed by another respondent. At the hearing, I made orders to this effect.

9        The applicant’s position was, in substance, that the NLC and the Land Trust should be joined on the same conditions as Swiss Aluminium and Gove. Having regard to the statutory functions of the NLC and the Land Trust, their involvement in the process that led to the challenged Decisions and the nature of the relief sought by the applicant, the applicant properly conceded that they should be joined. The precise basis for joining them was not, however, agreed; and this basis had some bearing on the appropriateness of the costs condition advocated by the applicant. In order to understand the basis for joining the NLC and the Land Trust, I outline below the statutory context, and the functions of these proposed parties. Their necessary involvement in the Decisions in question also appears from this outline. I have already referred to the relief sought by the applicant.

10        The NLC is established under s 21, and the Land Trust under s 4, of the ALRA. The functions of the Land Trust are set out in s 5, and the functions of the NLC, in ss 19, 21, 23 and 27. The Land Trust cannot exercise its function as owner except in accordance with a direction given to it by the NLC: see ALRA, s 5. With the consent of the Minister and at the direction of the NLC, the Land Trust may grant an estate or interest in the land: see ALRA, s 19(4A).

11        In carrying out its functions with respect to Aboriginal land, the NLC is required to have regard to the interests of, and consult with, the traditional Aboriginal owners of the land and any other Aboriginals interested in the land. By virtue of s 23(3) of the ALRA, the NLC cannot take action in connection with land held by a Land Trust unless satisfied that: (a) the traditional Aboriginal owners of the land understand the nature and purpose of the proposed action and, as a group, consent to it; and (b) any Aboriginal community or group that may be affected by the proposed action has been consulted, and has had adequate opportunity to express its view to the NLC. Further, pursuant to s 27(3), the NLC is precluded from entering into, or permitting a Land Trust to enter into, a contract involving payment or receipt of an amount exceeding $1 million, without the approval of the Minister; and, pursuant to s 27(4), the Minister shall not give an approval unless satisfied that the NLC has complied with any duty imposed on it by s 23(3).

12        The extent of the Gove mining venture and the arrangements for the renewal of associated leases are described by Mr Illot in his affidavit of 15 September 2011. For present purposes, it suffices to note that, on 26 May 2011, the Minister purported to give approval under s 27(3) for the NLC and the Land Trust to enter the Agreement, and to give consent under s 19 for the Land Trust to grant the Lease. The approval and the consent are challenged in this proceeding apparently upon the premise that compliance, and/or the Minister’s satisfaction as to compliance, with s 23(3) by the NLC, and the consent and approval given by the Minister under ss 19 and 27, are essential preliminaries to the validity of the transactions.

13        The statutory context, the nature of the relief sought by the applicant, the involvement of the NLC and the Land Trust in the process that resulted in the challenged Decisions, and the subject-matter of the Decisions establish that the NLC and the Land Trust are persons whose interests may be affected by the orders and judgment of the Court. General law principles of natural justice support their joinder: see Victoria v Sutton (1998) 195 CLR 291 at 316 [77]. Under the general law, the failure to join a necessary party precludes the grant of relief and, if orders are made in the absence of a necessary party, those orders may be set aside as of right: see John Alexander’s Clubs v White City Tennis Club (2010) 241 CLR 1 at 48 [137]. The NLC and the Land Trust submitted, and I accept, that they ought to have been joined as parties to the proceeding because the orders sought by the applicant would, if made, directly affect their rights and liabilities under the Agreement and the Lease. That is, they are, as they submitted, entitled to be joined under Rule 9.05(1)(a) of the Federal Court Rules 2011.

14        Whilst it is perhaps unnecessary to say so, given their entitlement to joinder under Rule 9.05(1)(a), the applicants also established an entitlement to be joined under Rule 9.05(1)(b)(ii), on the basis that their joinder is necessary to ensure that the issues in dispute are able to be heard and finally determined, since the applicant’s case is apparently premised on an alleged error by the NLC in the direction and permission it gave to the Land Trust to grant the Lease and enter the Agreement. At the hearing, however, this last-mentioned proposition was the subject of some argument.

15        At the hearing, counsel for the applicant emphasized that the applicant’s challenge was limited to the Minister’s Decisions and affirmed that the conduct of the NLC was not necessarily in issue. At one stage in the hearing, the applicant stated that its case was limited to the proposition that the Minister’s Decisions ought to be set aside because, in exercising her statutory powers under ss 19(4A) and 27(3) of the ALRA, the Minister could not have had the requisite satisfaction before making her Decisions. This submission was, however, at odds with the language of the originating application. When this was pointed out to the applicant’s counsel, he raised the possibility of amending the applicant’s originating application. Until this is done, however, the challenge appears to call into question the conduct of the NLC, and explains the NLC’s statement in written submissions filed before the hearing that it “will likely need to put on evidence to answer the applicant’s allegations concerning deficiencies in the consultation process carried out by the NLC” and perhaps also in relation to Ground 5 (which included a no evidence assertion). Until the applicant takes formal steps to confine its challenge, it would be premature to form any view that, notwithstanding the current terms of the originating application, the challenge will not call into question the conduct of the NLC.

16        The NLC and the Land Trust consented to orders designed to prevent the duplication of evidence and submissions, and I made an order to this effect. As noted, however, the applicant also sought an order that the joinder of the NLC and the Land Trust be made conditional upon those parties bearing their own costs. The NLC and the Land Trust opposed this condition.

17        Whilst I considered that the NLC and the Land Trust ought to have been joined as parties to the proceeding within Rule 9.05(1)(a), I rejected the applicant’s submission that their joinder should be subject to the same conditions as to costs as Swiss Aluminium and Gove. I did so for a number of reasons. First, the NLC and the Land Trust are not in the same position as the two companies. The companies had, as noted, consented to be joined under s 12 of the ADJR Act subject to these costs conditions. The NLC and the Land Trust did not so consent. The NLC and the Land Trust (unlike the companies) have statutory functions and obligations under the ALRA, the discharge of which the originating application calls into question. Further, for the reasons already stated, the NLC and the Land Trust are necessary parties, who ought to have been joined by the applicant at the outset of the proceeding. Had this occurred, there would have been no question of a condition of the kind for which the applicant contended. The NLC and the Land Trust should not be disadvantaged and the applicant advantaged (by obtaining in advance freedom from the ordinary rules as to costs) by reason of the applicant’s failure to join them at the outset.

18        The applicant relied on Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 (‘Hinchinbrook’), in which Branson J ruled (at page 16) that the State of Queensland might be joined as “a person interested” under s 12 of the ADJR Act subject to the condition that it meet its own costs. In that case, her Honour specifically held that the State was not a necessary party for the purposes of O 6 r 8 of the former Rules of Court (equivalent to Rule 9.05 in the current Rules). The position of the NLC and the Land Trust in the present case is, therefore, different from that discussed in Hinchinbrook because the NLC and the Land Trust are parties “who ought to have been joined”, under Rule 9.05(1)(a). The conditions that may be imposed where a party is joined under s 12 of the ADJR Act (which specifically contemplates joining conditionally) are not per se applicable to the joining of a party under Rule 9.05(1)(a).

19        The applicant accepted that, ordinarily, costs follow the event and costs orders are not made until judgment is given, although he noted that, in appropriate cases, the Court may provide otherwise. The applicant argued that, having regard to various considerations, the present was an exceptional case that justified a different costs regime so far as the NLC and the Land Trust were concerned.

20        First, in this regard, the applicant relied on the fact that he had not challenged the decisions of the NLC or the Land Trust. Rather, so the applicant said, “the NLC’s and Land Trust’s interest in the proceeding arises because of the fact that the legal status of the Agreement and the Lease … may be affected as a matter of law by the validity of the Minister’s decisions”. Quoting Morling J in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 19 ALD 315 (‘Kaycliff’) at 317, the applicant argued that he should not be deterred from challenging the Minister’s Decisions “by accident of the fact that a number of parties have entered into private arrangements that may be affected by the decisions that the Applicant seeks to have set aside”. As to Kaycliff, it suffices to observe that the circumstances that arose in Kaycliff were very different from the present case; and, in any event, the question of disposition of costs arose at the end of the proceeding. The question of costs was also dealt with at the end of the proceeding in Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 956, to which the applicant also referred. Further, as already stated, the terms of the originating application indicate that the interests of the NLC and the Land Trust are not confined to the fact that they are parties to the Agreement and the Lease, the validity of which is in issue. As already noted, perusal of the Grounds stated in the originating application indicates that the applicant apparently alleges that the NLC failed to discharge its duties under s 23 of the ALRA: see Grounds 2 and 3. The Particulars set out in paragraphs 3 (a) to (g) strengthen this impression.

21        If the NLC and the Land Trust are successful parties, they may, nonetheless, be denied full costs recovery if, by their conduct, they unnecessarily prolong the proceeding and unduly increase the costs for the applicant of the litigation. Wilderness Society Inc v Minister for Environment and Water Resources (2008) 101 ALD 1 (‘Wilderness Society’) and Lansen v Minister for Environment and Heritage (No 3) (2008) 162 LGERA 258 (‘Lansen’) are illustrative. In Wilderness Society, a Full Court of this Court held (at page 4) that, although the second respondent was a proper party to a challenge to the Minister’s decision, on appeal, notwithstanding a successful outcome from its perspective, the second respondent was not entitled to full costs recovery because it “played a larger role … than was necessary”. In Lansen, in awarding costs, Mansfield J took into account that both the Minister and McArthur River Mining Pty Ltd (‘MRM’) had conducted the proceeding in a reasonable and efficient manner, only reducing an award in their favour to reflect the applicant’s success on one issue. As in the present case, MRM was joined as a party to a challenge to a Ministerial decision, which had favoured MRM. Amongst other things, Mansfield J regarded the joining of MRM as correct because (at 271):

[I]t had obvious and good reasons to defend it; its part in the provision of information upon which the Minister’s decision was made was a very significant one, and the attack upon the decision included criticism of the adequacy of the information provided by MRM as well as the correctness of the procedures by which it was gathered.

22        Mansfield J rejected (at 271) the applicant’s submission that MRM had overstepped its proper role “and so it incurred costs on work which duplicated the work of the Minister”, holding “in protecting its own interests, it [did not] over-step[] the line of adopting as appropriate the Minister’s position and then advancing additional material where that was appropriate”. Accordingly, his Honour awarded costs on the basis that the Minister and MRM were entitled to some, but not all, of their costs.

23        The authorities indicate that, in a proceeding such as this, generally speaking, the ordinarily applicable costs rules apply, save where the circumstances of the case justify some departure from them. In the cases just mentioned, it was not until the conclusion of the case that the Court was in a position to assess the appropriate disposition of costs. As stated below, the applicant demonstrated no circumstance that would justify departure from the ordinary approach.

24        A further consideration mentioned by the applicant to justify joining the NLC and the Land Trust upon condition that they bear their own costs was that of the public importance of the challenge. For present purposes, I accept that the challenge “seeks to ensure that the supervisory function of the Minister under the ALRA with respect to performance of functions by the NLC and the Land Trust …is exercised lawfully” and that the challenge “may affect the legal status of the Lease … and the related Agreement, which together affect a wide class of Aborigines and other persons”. The authorities in this jurisdiction establish, however, that there is no special costs regime applicable to public interest litigation; and that the rule that costs follow the event ordinarily applies: see Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 (‘Save the Ridge’) at 413 [6] (Black CJ, Moore and Emmett JJ). Nonetheless, as their Honours noted in Save the Ridge at 413 [7]:

[T]he courts have taken into account various factors in exercising their discretion not to award costs against an unsuccessful plaintiff in public interest litigation. As was said in Ruddock v Vadarlis (No 2) [(2001) 115 FCR 229] at [14] per Black CJ and French J, “The term [public interest] may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.

25        The Full Court acknowledged (at 413 [6], 414 [12]) that, on occasion, costs might be denied a successful party, but quoted with approval the observation of the Full Court of the Supreme Court of Western Australia, in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 at [11], that such an occasion “should continue to be a rarity”. Their Honours noted that “[t]he fact that the [public interest litigant] sought no financial gain from the litigation is not, of itself, sufficient reason for departing from the usual order as to costs”. Further, as the Full Court observed (at 415 [14]-[15]), the rule that costs follow the event has been applied on numerous occasions in litigation carried on by associations that might generally be said to be “public interest” associations. Save the Ridge provides further support for postponing the questions of costs until the end of the proceeding.

26        Furthermore, Australian courts generally have considered the question whether the public interest nature of the litigation justifies a departure from the ordinary costs rules only at the end of the litigation, when they can take into account the whole history of the litigation: see also Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91 at 94-95.

27        Other factors relied on by the applicant to justify the condition as to costs included that: (1) the applicant had taken reasonable and practicable steps to avoid the litigation and to limit the issues in the limitation; (2) the challenge is reasonably arguable; and (3) the costs of the NLC and the Land Trust are likely to be significant whilst the applicant’s resources are limited, and the applicant’s lawyers are acting on a (conditional) pro bono basis. Although the evidence as to the applicant’s financial means is sparse, for present purposes, I accept that his means are limited. See generally the affidavits of Haroon Hassan of 6 October 2011 and the applicant of 4 October 2011. Although no-one has submitted that the applicant’s case is not reasonably arguable, as I indicated at the hearing, at this stage, I could form no view about the applicant’s case (or, indeed, about the steps preliminary to this litigation). In any event, none of these factors, alone or in combination, is sufficient to justify the attaching of a costs condition of the kind sought to the joining of parties who ought to have been joined, and should be joined under Rule 9.05(1)(a) of the Rules. As already noted, the current authorities binding on this Court favour the disposition of costs at the conclusion of the proceeding, when the significance of at least some of the factors on which the applicant relies will be clear. It is also relevant that the NLC and the Land Trust have stated that they will submit to an order to avoid duplication in evidence and submissions.

28        Bearing in mind the above considerations, I was not persuaded that the applicant had established a justifiable basis upon which the Court could order the joining of the NLC and the Land Trust upon the nominated costs condition.

29        The applicant referred the Court to some Canadian authorities concerned with protective costs orders, including British Columbia (Minister of Forests) v Okanagan Indian Band [2003] 3 SCR 371 and Little Sisters Book and Art Emporium v Canada (Commissioners of Customs and Revenue) [2007] 1 SCR 38, but did not develop any argument as to whether or not a protective costs order could properly be made in this case according to Australian general law principles. Nor did the applicant adequately explain at the hearing why it might seek an order of this kind against the NLC and the Land Trust, and not against the Minister.

30        It is important to appreciate that the applicant did not in fact make an application for a protective costs order of the kind more frequently discussed in other common law jurisdictions such as England and Canada. If such an application were made, it would have to be supported by appropriate evidence. The applicant has introduced the idea of a “protective costs order” in response to a joinder application by the NLC and the Land Trust. As counsel for the NLC and the Land Trust said, they came before the Court on their application to be joined and advanced their case for joinder according to received principles. Had they attended on an application for a protective costs order, they may well have relied on different or additional evidence and submissions.

31        For the reasons stated, at the conclusion of the hearing on 10 October 2011, I ordered that the NLC and the Land Trust be joined as respondents in the proceeding but declined to make the condition as to costs sought by the applicant.

Associate:

Dated:    25 October 2011