FEDERAL COURT OF AUSTRALIA

Burragubba v State of Queensland [2015] FCA 1163

THE COURT ORDERS THAT:

1.    The Applicant pay the Second Respondent’s costs thrown away by the Applicant’s application to amend his originating process.

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

REASONS FOR JUDGMENT

Introduction

1    These reasons concern whether a costs order should be made requiring Mr Burragubba to pay the costs thrown away by Adani Mining as a result of an amendment that he made to his originating application for judicial review. These reasons would probably have been delivered orally but for one matter raised by counsel for Mr Burragubba. That matter is the extent to which this Court’s discretion should be affected by considerations that do not fall within the text, but are said to fall within the “spirit” of s 85A of the Native Title Act 1993 (Cth). That section requires that, unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

2    For the reasons below, the appropriate order is that Mr Burragubba should pay the costs of Adani Mining thrown away as a result of his amendment to his originating application. The “spirit” or “equity” of s 85A of the Native Title Act 1993 (Cth) does not apply to proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) which involve contested questions of fact or questions of procedural fairness, rather than being confined to questions involving construction of provisions in the Native Title Act.

The application to amend and the costs issue

3    This matter is currently in the docket of Reeves J. On 16 October 2015, in his Honour’s absence, I heard an application by Mr Burragubba to amend his originating application for judicial review to do the following:

(1)    to change the title of the proceedings to make the previous third respondent (the State of Queensland) the first respondent in the proceeding;

(2)    to substitute the National Native Title Tribunal, as the current third respondent in the proceeding, for the party previously described as “James R McNamara (as Delegate of the Native Title Registrar)”; and

(3)    to rely on the proposed further amended originating application for judicial review which forms annexure BJC-1 to the affidavit of Benedict Joseph Coyne affirmed 16 October 2015.

4    The proposed amendments abandoned significant grounds of review that were contained in the judicial review application filed on 24 July 2015 for review, of a decision of the National Native Title Tribunal, under the ADJR Act. The amendments included the following matters.

(1)    Ground one had asserted that the decision of the National Native Title Tribunal on 8 April 2015 was obtained and affected by the “improper conduct” of Adani Mining. It was supported by eight particulars involving numerous factual allegations. In place of those allegations it is now alleged that the decision was adduced or effected by fraud. Different particulars are now provided. Adani Mining says that a significant amount of work in which it has engaged to respond to the previous version of ground one has been wasted.

(2)    A number of the specific allegations of denial of procedural fairness in grounds two to four of the previous version of the application have been abandoned.

(3)    A legal argument in grounds five and six that the operation of parts of the Native Title Act was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) has also been abandoned. Adani Mining says that although this issue was primarily legal, it included the allegation that a threat of financial disadvantage had affected the Wangan and Jagalingou People to oppose the approval of an act.

5    The application was initially opposed by Adani Mining on the basis that Mr Burragubba should pay the costs thrown away by the amendment. Shortly before the hearing Adani Mining confirmed that it did not oppose the amendments but sought an order that Mr Burragubba pay the costs thrown away by the amendments.

6    At the hearing of the application, Mr Burragubba opposed an order that he pay the costs thrown away. His counsel said that the amendments (i) are not greatly different from the original application, and (ii) the allegations were essentially the same, but reformulated. Assuming this to be the case, one would expect the costs thrown away to be insignificant, and perhaps even smaller than the costs of making submissions about those costs. Nevertheless, counsel sought leave to file written submissions on the issue of costs. Leave was granted in circumstances in which substantial submissions on the point had been filed by Adani Mining shortly before the hearing. The submissions were very helpful. And both counsel accepted that the application should be determined on the papers.

Costs dispositions in native title matters

7    The statutory regime in ss 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth), which provides for the general discretion to award costs, applies in relation to judicial review applications: Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 [2], [5] (Kenny, Edmonds and Rangiah J). A common order where a party has, by an amendment, abandoned grounds is that the other party’s costs thrown away by the amendment should be paid by the amending party: Robinson v Kenny (No 2) [2015] FCA 2 [29] (Farrell J).

8    Counsel for Mr Burragubba does not dispute any of the usual principles concerning costs. His written submission is that an order should be made that there should be no order as to costs in relation to his application for leave to amend because:

(1)    the “spirit” of s 85A of the Native Title Act is relevant to the exercise of the Court’s jurisdiction to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth);

(2)    the applicant conducted himself reasonably, in seeking to amend his originating application five weeks after he first engaged solicitors; and

(3)    by reason of s 11(6) of the ADJR Act, the applicant is not limited to the grounds of review set out in his originating application, but, in the event that new grounds are relied upon, the Court may direct that an originating application be amended.

9    As to (2), Adani Mining points to the legal representation by counsel of Mr Burragubba at directions hearing on 25 June 2015 and counsel’s assistance to the making of substantial amendments to his originating application on 24 July 2015. Although Adani Mining appeared to submit that this contradicts (2), it does not do so. I accept point (2).

10    In relation to (3), it is not necessary to examine the extent to which the procedural convenience for which s 11(6) of the ADJR Act applies to a discretion concerning who should bear the costs thrown away as a result of a party’s abandonment with or without an amendment. This is because even if it is a relevant factor, its significance is not great.

11    It suffices to say that even if both (2) and (3) are assumed in favour of Mr Burragubba, as I do for the purposes of this application, they do not come close to persuading me that the order should be anything other than an order that Mr Burragubba pay Adani Mining’s costs thrown away by reason of his amendment.

12    The first matter, (1), cannot be so easily dismissed.

13    Section 85A of the Native Title Act provides as follows:

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

Unreasonable conduct

(2)    Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

14    Mr Burragubba accepts that s 85A does not directly apply to proceedings under the ADJR Act. However he says that the “spirit” of s 85A applies to proceedings under the ADJR Act which are concerned with matters of construction of the Native Title Act.

The spirit or equity of a statute

15    The submission by counsel for Mr Burragubba would not have raised many eyebrows in the 17th or 18th centuries. At that time, the idea that a court could depart from the express and implied words of a statute was widely recognised. A famous exposition of it was the decision of Lord Mansfield in Simon v Motivos (1746) 1 Black W 599, 600; 96 ER 347, 347. In that case, Lord Mansfield suggested that the provisions of the Statute of Frauds 1677 might not apply to a sale by auction. Although there was no basis in the legislation for this exclusion as an implication, Lord Mansfield said that the “key” to construction of the Statute of Frauds was “the intent of the Legislature; and therefore many cases, though seemingly within the letter, have been let out of it”. Blackstone, who reported this decision, explained in his Commentaries that there are two limbs to the doctrine of the equity of the statute: “[1] cases, thus out of the letter, are often said to be within the equity... [2] cases within the letter are frequently out of the equity”: Blackstone, W Commentaries on the Laws of England (4th ed, Kerr R (ed), 1876) 223. The same point was made by St Germain, Viner, Bacon, Coke and Wood.

16    The doctrine was always controversial. One difficulty with it was that it contravenes the principle of legislation, of which Barwick CJ spoke in Watson v Lee [1979] HCA 53; (1979) 144 CLR 374, 381, that a person should not be bound by a law the terms of which she has no means of knowing. Another difficulty, which was recognised with the rise of parliamentary sovereignty, was that the doctrine crossed the line of constitutional settlement between adjudication and legislation. Although the line between legislation and adjudication might sometimes be very difficult to discern, it was said to be legislation, not adjudication, for a judge to derive from a statute a rule which was neither expressed nor implied in the statute and which might be contrary to the terms of the statute. As Deane and Gummow JJ observed in Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538, 553, the doctrine of the equity of the statute “fell deeply into disfavour in England and the United States with the rise of legal positivism in the last century”. By the mid-19th century, Sedgwick remarked of the second limb of the equity of the statute in The Interpretation and Application of Statutory and Constitutional Law (1857) 306-307:

There is no propriety in calling the process, construction or interpretation. It consists in inserting a clause, to provide for a class of cases which the court thinks ought, as a matter of justice, to be excepted out of the statute. Nor is there any ground for asserting, that if the subject had been called to the attention of the legislator he would have made the exception. … The process, therefore, in these cases, is not obedience to legislative commands; it is not an effort to arrive at the legislative intention; it is not construction of a doubtful provision it is a violation of the words of the statute, in order to make a rule according to the judicial notion of right. It is purely and strictly judicial legislation. And, fortunately, we are not without abundant authorities in our law which steadily, it may be sternly applied, will establish in its proper place the line that separates the judicial from the legislative functions.

17    The doctrine today remains controversial. It is hard to see how it can have any substantive operation in the form in which it originated. The High Court has emphasised that the task of statutory construction begins and ends with the meaning of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519 [39] (the Court). It is no longer legitimate to speak, as Plowden did in his note to Eystone v Studd (1574) 2 Plow 459, 465-469; 75 ER 688, 695-700, of a general power for “the general words of the law [statute]” to be “corrected and abridged by equity”.

18    However, there remain limited examples where Courts still apply an approach to give a statute a meaning which the words cannot literally bear. One example is the correction of “simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision”: Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473, 483 [38] (French CJ, Crennan and Bell JJ). An instance commonly cited is French legislation that, read literally, would have made it an offence for passengers to get on or off a train when the train was not moving. The correction of such a “thumping, obvious error” is usually explained as involving an “implication” or as a “contextual” approach to the meaning of the statute: Siegel, JR “What statutory drafting errors teach us about statutory interpretation” (2001) 69 George Washington Law Review 309. It does not matter whether these examples are described as applications of a weaker version of the equity of the statute, or as implications, or as contextual construction. In each case, unlike other instances involving the equity of the statute, these rare examples are nevertheless consistent with constitutional divisions of power.

19    Another example, which might be a progeny of the first limb of the equity of the statute, is the role of statute in developing the common law. In Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 62 [24], Gleeson CJ, Gaudron and Gummow JJ quoted with approval from Lord Diplock in Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731,743, albeit noting the context of a nation with a single Parliament:

Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.

20    An application of this approach differs from the form and style of reasoning in many of the older cases involving the equity of the statute. It does not purport to be an application of the statute to the facts of a case. Rather, it is a legitimate recognition that the common law has always been developed, incrementally, by reference to underlying, and structural, norms and principles. The existence of uniform Australian legislation on a subject is undoubtedly a potential source of such structural societal norms.

21    Nevertheless, caution should be applied before identifying some underlying norm in uniform legislation which is capable of general application to develop the common law. The need for caution arises because the statute has not itself extended to that area of common law. It may be that the legislative intention, revealed by the terms of the statute, involved a positive decision to create a rule of limited application rather than one supporting a new underlying norm capable of general application.

22    This concept of development of the common law by underlying statutory norms should also apply to instances involving other statutory discretions which are relatively unconstrained and have been developed, incrementally, by the common law method. Although the submissions of counsel for Mr Burragubba were expressed in the language of the “equity” or “spirit” of s 85A of the Native Title Act, it is in this limited sense in which those submissions should be understood. In other words, Mr Burragubba’s submission should be understood as asserting that an underlying norm created by s 85A of the Native Title Act should be applied beyond the strict terms of that statute to develop the manner in which a costs discretion under the Federal Court Act is exercised.

The “equity” of s 85A of the Native Title Act

23    As I have explained, Mr Burragubba accepts that this case does not fall within the underlying rule in s 85A(1) of the Native Title Act that, unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. This concession was probably made because counsel accepted that a judicial review proceeding under the ADJR Act is not a proceeding under the Native Title Act within the definition of s 85A(1): see Murray v National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402, 409-410 [27]-[28] (the Court); Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453, 494-495 [157] (Dowsett J); Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 [15] (Mansfield J); O’Mara v Minister for Lands [2008] FCA 51; (2008) 167 FCR 145, 151-153 [27]-[37] (Reeves J).

24    However, there are cases where this Court and the Full Court have applied a principle, described as the equity or spirit of the statute, and held that s 85A of the Native Title Act constrains the exercise of discretion in some judicial review cases.

25    Two cases in which this occurred were Murray v National Native Title Tribunal [2003] FCA 45 (on appeal Murray v National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402) and Fesl v Delegate of the Native Title Registrar (No 2) [2008] FCA 1479; (2008) 173 FCR 176. In each case, the court was concerned with an application under the ADJR Act involving construction of the Native Title Act. The issues involved whether to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an Indigenous Land Use Agreement. In Fesl, one of the matters relied upon by Logan J was that although the judicial review proceeding was not under the Native Title Act, it did involve a construction of important provisions of that Act relating to Indigenous Land Use Agreements (181 [22]). Similarly, in the decision of Marshall J in Murray, which was quoted with approval in the Full Court (at 409-410 [27]), his Honour also said (at [7]-[9]) that although the proceeding was not under the Native Title Act it did involve a consideration of the meaning of important provisions of that Act relating to Indigenous Land Use Agreements. However, although the Full Court considered that approach appropriate for a first instance hearing, costs were awarded on the appeal.

26    In contrast, in Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453, 493, Dowsett J (with whom French J agreed on this point) upheld the decision of the primary judge that costs should follow the event. Although his Honour’s reasons were initially provisional, pending submissions by counsel, the Court later confirmed the reasons: Lardil Peoples v Queensland [2001] FCA 464. Justice Dowsett held that s 85A should not apply to proceedings brought under s 213 of the Native Title Act because a “proceeding” for the purposes of s 85A does not include proceedings within the jurisdiction conferred by s 213 of the Native Title Act, with the possible exception of cases where the applicant seeks to establish native title. In concluding that s 85A did not apply, his Honour referred to a decision of Lee J in Brownley v Western Australia [1999] FCA 1431; (1999) 95 FCR 172 where Lee J made an order for costs against the applicant, holding that s 85A did not apply. Lee J said that s 85A did not apply to proceedings under the ADJR Act because s 85A was concerned with proceedings in the exclusive jurisdiction of the Federal Court and a Supreme Court has concurrent jurisdiction under the ADJR Act.

27    This brief review of the decisions on s 85A suffices to show that although there are decisions of this Court which have extended the application of the norm underlying s 85A to proceedings under the ADJR Act, they have done so in limited circumstances where those latter proceedings involve questions of construction of the Native Title Act. There are strong reasons why the scope of this application of the “equity” or “spirit” of s 85A should, at best, be limited to these circumstances.

28    One reason is that a default principle (“unless the Federal Court orders otherwise”) that each party should bear its own costs potentially conflicts with other general principles concerning the exercise of a costs discretion including that ordinarily costs follow the event and ordinarily a party who amends a pleading should pay the other party’s costs thrown away by the amendment. As Mansfield J said in Northern Territory v Doepel (No 2) [2004] FCA 46 [17], an approach which applied the “spirit” of s 85A could not replace or trump the existing costs principles. At best, there would be two principles pointing in entirely different directions.

29    A second reason is that the general costs principles were well understood at the time that a different norm was introduced in the Native Title Act. That statutory regime could have extended the different s 85A norm further. But it did not. The particular reasons for the s 85A principle are inextricably tied to the careful balance embodied in the Native Title Act. As Senator Herron said in the second reading speech in the Senate of the Native Title Amendment Bill 1997 that inserted s 85A into the Native Title Act, the aim was to create an effective framework that balances the interests of all parties with an interest in the land. Section 85A plays a role in that balance by establishing a costs principle that, unless the Court orders otherwise, parties bear their own costs in relation to matters falling within the scope of “proceedings” in s 85A.

30    Finally, if the “equitable construction” or the “spirit of the statute” approach to the s 85A norm were extended beyond the existing circumstances of its application involving construction of provisions of the Native Title Act then it is difficult to see how much further this principle would extend. Would it extend to all cases where there is an issue involving construction of the Native Title Act no matter how peripheral that issue? Would it involve all cases relating to issues of native title that might have some connection to the Native Title Act? Would it extend to all cases involving issues related to native title? And how could such extensions be justified in circumstances in which s 85A does not even apply to all proceedings under the Native Title Act such as those brought under the jurisdiction conferred by s 213 of the Native Title Act?

31    It might have been argued that the principle involving the spirit of s 85A could be applied to this case because some of the amendments involved construction of the Native Title Act. I do not accept that view. If the s 85A norm were to be extended, I consider that it would be beyond any legitimate application to extend the norm embodied by s 85A to a situation involving the costs of an amendment to a judicial review application which included amendments to factual claims and amendments to claims concerning denial of procedural fairness. However, even on the assumption that the norm were to be extended to the circumstances of this case, creating costs principles pointing in different directions as Mansfield J recognised in Northern Territory v Doepel (No 2), then I would still (as Mansfield J did) conclude that the appropriate exercise of discretion is that Mr Burragubba should pay the costs of Adani Mining thrown away by reason of Mr Burragubba’s amendment to his originating process.

Conclusion

32    The appropriate order is that Mr Burragubba pay the costs of Adani Mining thrown away by reason of Mr Burragubba’s amendment to his originating process. It may be that if the submissions of counsel for Mr Burragubba are correct, and the amended application is essentially the same as the original application but reformulated, then these costs will not be significant (and perhaps even less than the costs of agitating this issue). But that would be a matter for the taxing officer.

Associate:    

Dated:    29 October 2015