FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2012] FCA 309

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2012] FCA 309

CORRIGENDUM

1.    In the legislation section of the Cover Sheet, “Aboriginal Land Act 1991 (Qld)” should read “Aboriginal Land Regulation 1991 (Qld)”.

Associate:

Dated:    3 April 2012

THE COURT ORDERS THAT:

1.    The fourth respondent pay the costs of the applicant and the second respondent in relation to these proceedings.

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

REASONS FOR JUDGMENT

introduction

1    After delivering judgment in this matter (see [2011] FCA 1457), the parties were ordered to exchange submissions on the question of costs. That resulted in all but one of the parties seeking costs orders against each other: QGC Pty Limited, the applicant, sought an order for costs against NTSCORP Limited, the fourth respondent; Mr Russell Doctor and others as the registered native title claimant for the Bigambul People, the second respondent, also sought an order for costs against NTSCORP; and NTSCORP and Mr Bob Weatherall, the third respondent, sought an order for costs against QGC. Ms Bygrave, the first respondent, was content to pay her own costs and did not seek any costs order against any of the other parties.

2    Before going to the submissions made in support of these various applications, it is necessary to briefly outline some of the background to these proceedings. That is set out hereunder.

Factual background

3    QGC commenced these proceedings under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). It sought to challenge a refusal by Ms Bygrave, in her capacity as a delegate of the Native Title Registrar, to register an agreement as an Indigenous Land Use Agreement (ILUA) under Div 3 of Subdiv C of Pt 2 of the Native Title Act 1993 (Cth) (the Act).

4    The agreement in question was made between QGC and Mr Russell Doctor and others in their capacity as the registered native title claimant for the Bigambul People’s native title claim. The Bigambul People’s claim, which was filed in 2009, covers the same area. In these reasons I will refer to this area as the Bigambul area and the agreement in question as the QGC–Bigambul agreement.

5    Mr Weatherall is the Chairman of the Kamilaroi Land Trust. That body is a Land Trust incorporated under reg 19 of the Aboriginal Land Regulation 1991 (Qld).

6    NTSCORP is a representative Aboriginal/Torres Strait Islander body under Pt 11 of the Act. Its area of responsibility covers the State of New South Wales. Thus, the northern boundary of its area of responsibility is the Queensland–New South Wales border which is also the southern boundary of the Bigambul area. Nonetheless, it represented the Kamilaroi/Gomeroi People who claimed to hold native title in land and waters on both sides of the Queensland–New South Wales border, including a part of the Bigambul area. The representative Aboriginal/Torres Strait Island body with responsibilities under the Act for the Bigambul area is Queensland South Native Title Services. It is not a party to the proceedings.

7    Both NTSCORP and Mr Weatherall made submissions to Ms Bygrave on behalf of the Kamilaroi/Gomeroi People objecting to QGC’s application to register the QGC–Bigambul agreement. Ms Bygrave took those submissions into account in rejecting QGC’s application.

8     As I recorded in my reasons for judgment ([2011] FCA 1457 at [10]), NTSCORP and Mr Weatherall were joined as parties to these proceedings by order of Dowsett J, in part, to provide a contradictor to QGC’s application. This arose because it became apparent that Mr Doctor and others on behalf of the Bigambul People had a common interest with QGC in supporting the registration of the QGC–Bigambul agreement as an ILUA under the Act. As well, Ms Bygrave, as the primary decision-maker, indicated that, consistent with the Hardiman ruling, she would submit to the orders of the Court.

9    QGC was ultimately successful in its challenge to Ms Bygrave’s refusal to register the QGC–Bigambul agreement. Accordingly, I made orders setting aside that decision and directing Ms Bygrave to enter the QGC–Bigambul agreement on the Register of ILUAs under the Act.

Contentions

10    Mr Hiley QC, for QGC, submitted that, since it was successful in these proceedings, the normal rule should apply and costs should follow the event. He submitted that s 85A of the Act did not apply to these proceedings because they are proceedings under the ADJR Act and the Judiciary Act 1903 (Cth) and not proceedings under the Act within the meaning of s 81 of that Act. Anticipating NTSCORP’s submission it should not be required to pay costs because it was joined by the Court as a contradictor, he submitted that it was NTSCORP’s original objection that led to the Registrar applying the decision of Branson J in Kemp v Native Title Registrar (2006) 153 FCR 38, [2006] FCA 939 (Kemp) and deciding not to register the QGC–Bigambul agreement as an ILUA. He also submitted that NTSCORP did not, at any point, object to being joined, or seek to be removed as a party to the proceedings. Instead, he submitted, it played an active role throughout. Finally, he submitted that, as the native title representative body for New South Wales, NTSCORP had no statutory function or authority in relation to the Bigambul area, which was entirely in Queensland.

11    Mr Rangiah SC, for Mr Doctor and others, broadly supported the submissions made by QGC. He pointed out that, once it was joined as a respondent, NTSCORP could have simply chosen to abide by the orders of the Court, but instead it played a full and active role in opposing QGC’s application and in advancing its own construction of the law. Mr Rangiah also supported QGC’s submissions that s 85A of the Act does not apply to these proceedings. Further, he submitted that it would not be appropriate in the circumstances to apply the “spirit” of s 85A.

12    As anticipated by QGC, Ms Phillips, for NTSCORP, relied upon the fact that it had been joined by the Court for the purposes of carrying out the role of contradictor for the assistance of the Court. Ms Phillips rejected QGC’s contention that it had “persuaded” Ms Bygrave, as the delegate, not to register the QGC–Bigambul agreement as an ILUA. Instead, she submitted that NTSCORP had acted throughout to discharge its statutory responsibilities under the Act. While she appeared to accept that s 85A of the Act did not apply to these proceedings, Ms Phillips submitted that the Court should take account of the “spirit” reflected by that provision. On this aspect, Ms Phillips submitted that these proceedings raised important questions about the construction of ss 24CG(3)(b), 24CL and 251A of the Act and required a resolution of the tension between the decisions in Kemp and Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176; [2008] FCA 1479 (Fesl).

13    As I have already noted above (at [1]), Ms Bygrave did not seek any order for costs in her favour and submitted that no such order should be made against her in favour of any other party.

Consideration

14    Under s 43 of the Federal Court of Australia Act 1976 (Cth), the Court has a general discretion to award costs: see, for example, Ruddock v Vardalis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 (Ruddock) at [9]. It is well-established that, in the absence of special circumstances, costs ordinarily follow the event: see, for example, Ritter v Godfrey [1920] 2 KB 47 at 52–3, Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748 at 48,136 per Toohey J and Ruddock at [11]. It is also well-established that the function of a costs order is compensatory: costs orders are not made to punish an unsuccessful party: see Latoudis v Casey (1990) 70 CLR 534 (Latoudis) at 543 per Mason CJ, 563 per Toohey J and 567 per McHugh J.

15    In her submissions, Ms Phillips essentially relied upon three circumstances to attempt to displace the usual approach that costs follow the event. They were, first, that NTSCORP had been joined as a contradictor to assist the Court. Secondly, that in acting as a party to these proceedings, NTSCORP was discharging its statutory responsibilities under the Act. And, thirdly, that the importance of the issues involved for the construction of the Act attracted the “spirit” of s 85A, which provision generally stands against costs being ordered in native title proceedings. I will deal with these circumstances together because the considerations underlying them overlap to a large extent.

16    On the liability of a contradictor for costs, Ms Phillips relied upon the observations of Kirby J in Attorney-General for the State of Western Australia v Marquet (2003) 217 CLR 545; [2003] HCA 67 (Marquet) (at [219]) as follows:

Contradictors’ costs should be paid: … The amici were necessary participants in these proceedings. By their submissions, they helped crystallise the competing contentions. At stake were constitutional issues transcending the interests of private litigants. Although, in the result, in my view, the amici fail, it is difficult to see how the proceedings could have been conducted without them. The Court might have been forced to require the appointment of a contradictor. In such circumstances, the costs of that person would have had to be borne by the State, the constitutional law of which was in question.

17    A number of things may be said about the application of these observations in these proceedings. First, Kirby J was in a minority of one on this contradictor costs issue in Marquet. The other five members of the Court were all of the view that the amici should pay their own costs: see at [86] per Gleeson CJ, Gummow, Hayne and Heydon JJ and at [303] per Callinan J. Of course, this is far removed from an order that NTSCORP pay costs, which is what QGC and the Bigambul People are seeking here.

18    Secondly, these proceedings did not involve constitutional issues nor, in my view, did they involve public interests that transcended the interests of private litigants. To the contrary, in my view, these proceedings were closely aligned to private interest litigation. QGC’s primary interest in this litigation was in having the QGC–Bigambul agreement registered as an ILUA so that it could carry out “future acts” on the Bigambul area as a part of the Curtis LNG Project: see [2011] FCA 1457 at [14]. This was clearly a private commercial interest. The main impediment to the registration of the agreement as an ILUA, was the claim by the Kamilaroi/Gomeroi People that they held native title rights and interests in a part of the Bigambul area that entitled them to a direct say in the authorisation of the QGC–Bigambul agreement under the Act. Their direct opponents on that issue were the Bigambul People. They claimed they were the community or group that held the native title rights and interests in the whole of the Bigambul area. So, as between the Kamilaroi/Gomeroi People and the Bigambul People, the critical issue in contention was: who holds the native title rights and interests in that part of the Bigambul area where the claims of the Bigambul People and the Kamilaroi/Gomeroi People overlapped? At the heart of that dispute were the benefits that the QGC–Bigambul agreement would come to provide (if registered as an ILUA) to whichever community or group held those native title rights and interests. While such native title rights and interests are generally understood to be communal or group rights, I do not consider that makes them public rights. Instead, I consider those rights and interests and the correlated benefits that would come to be provided under the QGC–Bigambul agreement are, in essence, private rights held by the community or group concerned on behalf of the individuals who make up that community or group. That being so, I consider the Kamilaroi/Gomeroi People and the Bigambul People were both pursuing private rights in this litigation and it therefore constitutes private interest litigation as between them.

19    Thirdly, while the need for a contradictor was a part of the reason for NTSCORP’s joinder in these proceedings, it is quite apparent from the transcript of the directions hearing before Dowsett J on 5 July 2011, when that joinder occurred, that NTSCORP intended to be much more than a mere contradictor in these proceedings. The following is the relevant part of that transcript:

HIS HONOUR: All right. Well, now, Ms Phillips, what is your client’s attitude to these proceedings?

MS PHILLIPS: Well, your Honour, this morning I was shown some draft orders by my learned friend for QGC which proposed that we provide some submissions and your Honour will no doubt turn to the short minutes shortly. But our position is that we wish to participate in the hearing and that we will provide submissions addressing the issues that arise. Your Honour, I received the brief yesterday. So I am not in a position to throw particular light on our position, but I do understand and agree with the summary that has been provided by my learned friend.

HIS HONOUR: On what basis do you seek to participate in the proceedings?

MS PHILLIPS: Well, NTSCORP as the native title service provider for New South Wales [has] statutory responsibilities to people, including the Kamilaroi, who have native title rights and interests.

HIS HONOUR: Yes.

MS PHILLIPS: It is true, your Honour, that they have not yet filed a claim, but I believe it may be amongst the material deposed by the anthropologist in the affidavit provided to the delegate concerning work done with this group and research, and their intentions to file a claim in due course.

HIS HONOUR: Yes.

MS PHILLIPS: So NTSCORP is fulfilling its statutory responsibilities.

HIS HONOUR: Well, that is really all I wanted to know, whether you were doing it in that capacity or proposed to represent individuals. But you are doing it in that capacity?

MS PHILLIPS: In that capacity, your Honour.

(Emphasis added)

Consistent with this, throughout these proceedings, NTSCORP proceeded to act as a willing and active participant advancing the interests of the Kamilaroi/Gomeroi People.

20    Fourthly, I consider that the objection NTSCORP lodged with the delegate on behalf of the Kamilaroi/Gomeroi People can be fairly described as the root cause of these proceedings. On this aspect, I do not accept Ms Phillips’ submissions to the contrary: see at [12] above. If that objection had not been lodged with Ms Bygrave, I consider it is highly unlikely that she would have decided not to register the QGC–Bigambul agreement as an ILUA. It follows that, without the objection from the Kamilaroi/Gomeroi People, it would not have been necessary for QGC to issue these proceedings seeking to set aside Ms Bygrave’s decision. It follows further, in my view, that NTSCORP’s intervention on behalf of the Kamilaroi/Gomeroi People can be regarded as the original and direct cause of QGC and the Bigambul People having to incur the legal costs they necessarily did in these proceedings.

21    Viewed in this way, I consider NTSCORP’s intervention from the outset and throughout is more closely aligned to that of the Commonwealth’s in O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232, where the High Court decided the Commonwealth should pay the costs. The Court said (at 311):

It is only in special circumstances that it is appropriate for the Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party have been increased by the intervention. However, it appears to us that such special circumstances exist in the present case. As has been said, it was the Commonwealth which obtained the removal of the cause into this Court so that it could intervene and challenge the correctness of the answers favouring the respondent. It has failed in that challenge. In our view, it is appropriate that an order be made that the Commonwealth pay the costs of the respondent of the proceedings in this Court, including the costs of the present application.

22    Fifthly, I do not consider that, in the circumstances of this matter, NTSCORP was obligated to discharge any statutory functions under the Act. As Mr Hiley correctly pointed out, the Bigambul area is in Queensland and it is therefore not within NTSCORP’s area of responsibility under the Act, viz New South Wales. Section 203BB(3) of the Act provides that a representative body such as NTSCORP can only perform its functions in relation to land or waters that are wholly, or partly, within the area for which the body is the representative body. Thus, if NTSCORP wished to perform its functions in relation to any land or waters outside its area of operation, ie the Bigambul area in Queensland, it had to first obtain the consent, under s 203BD of the Act, of the representative body with responsibility for that area, in this case Queensland South Native Title Services. Indeed, these provisions were relied upon by Ms Phillips during the hearing to attempt to explain why it was that the Kamilaroi/Gomeroi People had not filed their own native title determination application over a part of the Bigambul area: see [2011] FCA 1457 at [83].

23    Finally, I do not consider the important issues involved for the construction of the Act in these proceedings attracts the “spirit” of the operation of s 85A(1). That section provides that:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

24    It is common ground that s 85A of the Act only applies to a proceeding under s 81 of the Act and does not apply to, among others, proceedings under the ADJR Act. A number of decisions of this Court have held to that effect: see Brownley v Western Australia (No 2) (1999) 95 FCR 172; [1999] FCA 1431 at [21] and [23], The Lardil Peoples v State of Queensland (2001) 108 FCR 453; [2001] FCA 414 at [157] per Dowsett J, Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 (Doepel) at [15] per Mansfield J, O’Mara v Minister for Lands (2008) 167 FCR 145; [2008] FCA 51 at [27]–[37] and Fesl at [19] per Logan J. Nonetheless, these authorities and Murray v Registrar of the Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220 (Murray) and Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2010] FCA 1154 all show that the “spirit” of s 85A is a factor to be taken into account in deciding whether to order costs in proceedings that involve the construction of provisions of the Act.

25    For example, in Murray, the Full Court endorsed the approach taken by the primary judge ([2003] FCA 45 at [7]–[9]), but considered the ordinary rule should apply on the appeal costs, as follows (at [27]–[28]):

27.    In considering an application made at first instance by the second respondent for a costs order in its favour, Marshall J observed in Murray at [7]-[9]:

It is not in dispute that an order for the payment of costs is discretionary and that the discretion must be exercised judicially. It is also not in contest that the ordinary rule is that costs should follow the event and that a successful party should receive its costs unless special circumstances justify some other order; see, for example, Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11], per Black CJ and French J.

The proceeding was not one under the Native Title Act 1993 (Cth) but it did involve a consideration of the meaning of important provisions in that legislation concerning the entering into and the registration of ILUAs. The judgment of 20 December 2002 dealt with issues relevant to the scope and meaning of s 24CD of the Native Title Act, amongst other matters. It was the first one of its kind to do so. If the application had have been one commenced under the Native Title Act, the Court would have been required to consider the provisions of s 85A of that Act. …

Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate “to follow the spirit of subs [85A(1)] of the Act”; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O’Loughlin J.

28.    In our respectful view, the approach adopted by his Honour, as reflected by the above paragraphs, was entirely appropriate in the circumstances of a first instance proceeding. However, the appellant was dissatisfied with the decision of the primary judge. It chose to appeal against the judgment of his Honour. Its appeal, in our view, was without merit. It seems to us that the considerations which led his Honour to depart from the ordinary rule that costs should follow the event are of greatly diminished significance in the context of this appeal. In our view the ordinary rule should prevail on this appeal.

26    Similarly, in Fesl, Logan J reviewed the decision in Murray and a number of other decisions at [13]–[19], and concluded (at [19]):

A proceeding under the AD(JR) Act is not a “proceeding” for the purposes of s 85A of the Native Title Act. In Brownley v Western Australia (No 2) (1999) 95 FCR 172, Lee J had reached just such a conclusion (at para 21). More recently, in O’Mara v Minister for Lands (2008) 167 FCR 145, Reeves J reached a like conclusion. That does not mean that it is impermissible, in relation to the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act, to take into account the “spirit” of s 85A. That is what I propose to do and it seems to me that, sitting in the original jurisdiction, I am in any event bound by Murray’s case so to do.

27    It is worth adding that, later in his decision, Logan J referred to a decision of Finn J which demonstrates this approach is not unique to the Act. His Honour observed (at [25]):

Even in federal judicial review proceedings unconcerned with the Native Title Act, costs do not invariably follow the event. Duncan v Chief Executive Officer, Centrelink (No 2) [2008] FCA 667 (Finn J) offers a recent example. In that case, (at [4]) his Honour observed:

Notwithstanding the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7].

28    In Doepel, Mansfield J expressed similar sentiments about the important public interest considerations involved in construing provisions of the Act, as follows (at [11]:

It is plain enough that the judicial exposition or clarification of what is intended by certain legislation is in the public interest, as well as resolving the particular dispute between the parties. To varying degrees, there is an element of public interest in many cases. Moreover, where the Commonwealth or a State or Territory is the applicant in a proceeding it will very commonly be seeking to maintain a position in the public interest. I use ‘public interest’ in a wider sense than simply seeking to recover a claimed indebtedness, for example a taxation liability, even though in a sense the recovery of such indebtedness might also be fairly described as in the public interest. The majority in Ruddock said at 236, [14]:

‘In any event it must be recognised that the concept of the “public interest” is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term 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.’

(Emphasis in original)

Conclusion

29    There is no doubt that these proceedings involved the construction of various provisions of the Act dealing with the registration of ILUAs and that they therefore had an important public interest component to them. There is also little doubt that the submissions Ms Phillips made on behalf of NTSCORP were, at least in part, made in the discharge of NTSCORP’s role as a contradictor in these proceedings. On this point, I acknowledge the assistance I obtained from those submissions. Nonetheless, in the final analysis, I consider that these factors are outweighed by the various factors identified above. Dominant among them are the private, albeit community or group, interests NTSCORP was pursuing for the Kamilaroi/Gomeroi People in this litigation. As well, I consider it is significant that NTSCORP’s intervention in these proceedings was the original and direct cause of QGC and the Bigambul People having to incur the legal costs they did in pursuing these proceedings. In these circumstances, I consider it is only fair and just that they should be compensated for those costs. For these reasons, the usual rule as to costs should be applied in these proceedings, viz that costs follow the event.

30    Accordingly, I propose to order that NTSCORP pay the costs of QGC and the Bigambul People in relation to these proceedings.

Associate:

Dated:    27 March 2012