FEDERAL COURT OF AUSTRALIA

Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport (No 2) [2014] FCA 145

THE COURT ORDERS THAT:

1.    The applicants and first respondent pay the second respondent’s costs as agreed or taxed.

2.    The second respondent’s entitlement to costs under Order 1 be set off against its liability to the applicants (as respondents) under Order 1 made today in proceedings WAD 293 of 2013.

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

THE COURT ORDERS THAT:

1.    The applicant pay the respondents’ costs as agreed or taxed.

2.    The respondents’ entitlement to costs under Order 1 be set off against their liability to the applicant (as second respondent) under Order 1 made today in proceedings WAD 234 of 2013.

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

REASONS FOR JUDGMENT

1    In my reasons on the substantive issues in these proceedings, I suggested a preliminary view that the Citic parties and the Secretary should pay Mineralogy’s costs of the judicial review proceedings, and that Mineralogy should pay the Citic parties’ costs of the injunction proceedings, with those costs being set off: Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport [2014] FCA 28 at [95]. I directed that the parties file written submissions as to the costs orders that they sought.

2    In the event, the Citic parties and Mineralogy agreed with the preliminary view that I had expressed, save that Mineralogy sought, and the Citic parties opposed, an order that it be entitled to the costs of three counsel and an uplift of the scale allowance for senior counsel to $8,800 per day.

3    The Secretary opposed any costs order being made against him on the basis that his participation in the judicial review proceedings had been limited to issues of statutory construction principally directed to s 14(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (Cth) and his explanation of why he had formed the view that his delegate had failed to take into account relevant considerations. He contended that no order for costs should be made against him or, if one were, it should be limited to 10% to 20% of Mineralogy’s costs. He adopted the Citic parties’ opposition to Mineralogy’s claims for the two special costs orders it sought.

Mineralogy’s special costs orders

4    I reject Mineralogy’s submissions. I am not persuaded that anything in the circumstances of this litigation warranted Mineralogy’s retention of three counsel or the making of any special direction to the taxing officer as to allowances for senior counsel. The ordinary principles applicable to the taxation of costs under the Federal Court Rules 2011 (Cth) will ensure that Mineralogy receives appropriate recognition for its costs and expenses in successfully defending the judicial review proceedings. They were typical proceedings of that class which this Court deals with in the ordinary course and call for no special costs orders.

The Secretary’s position

5    At the directions hearing of 6 August 2013, the Secretary’s then counsel said that he was not going to file a submitting appearance but, rather, would “assist at the hearing by informing the Court precisely the basis on which we have formed the view we have and then leave it to the parties to fight it out”. Counsel did not articulate at that time in what respects the delegate supposedly had failed to take into account relevant considerations. That left the parties and myself mystified as to the Secretary’s reasoning. Instead, he proposed that the Secretary’s written submissions would articulate the reasons why the delegate’s decision should be set aside. The Secretary’s subsequent written and oral submissions repeated his assertion that he did not seek to play an active part in the proceedings. The Secretary contended that, in those circumstances, a costs order should not be made against him.

6    I reject that argument. The Secretary argued the substantive merits of the proceedings. He did not merely submit to any order that the Court might make except as to costs. Rather, he became a protagonist by announcing to the Citic parties and Mineralogy (which had not been joined as second respondent at that time) on 16 July 2013 that he considered that his delegate’s decision had failed to take into account relevant considerations and proposed a consent order setting aside the designation of Mineralogy as port operator. Unsurprisingly, Mineralogy did not agree to that proposal.

7    The Secretary chose to make his assertion of 16 July 2013 in the Delphic form that the delegate’s decision should be set aside because he had failed to take into account some unspecified relevant considerations. That position was exacerbated by his counsel’s inability to articulate what the Secretary was asserting was wrong with the decision at the directions hearing of 6 August 2013 and postponing the provision of that critical information to the time of service of the Secretary’s written submissions. Those submissions advanced a substantive argument, but left uncertain whether the Secretary contended that his delegate had made no decision at all, that being the effect of a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76]), or whether he had made a decision that was merely voidable. Eventually, the Secretary submitted that his argument entailed that the delegate’s decision was affected by jurisdictional error and was hence no decision at all.

8    The Secretary played a substantive role in the litigation. He wished to be, and was, heard as to why he repudiated his delegate’s decision. His submissions were supportive of some of the Citic parties’ arguments and were not substantively discrete. The judicial review proceedings were complicated by the Secretary’s stance. He did not limit his role to assisting in the process of statutory construction (cp: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 per Gibbs, Stephen, Mason, Aickin and Wilson JJ). Nor did he merely identify, with appropriate precision at the time of raising the point, why he contended that the delegate’s decision was flawed (cp: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179 per French J) and then leave it to the parties to argue the matter. The Secretary chose to participate in the hearing in a substantive role as a protagonist and must accept the ordinary consequences of his contentions’ lack of success.

9    I accept the arguments of the Citic parties and Mineralogy that the Secretary should be ordered to pay Mineralogy’s costs of the judicial review proceedings.

Associate:

Dated:    28 February 2014