FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104

ORDERS

THE COURT ORDERS THAT:

1.    The applicants pay the first and second respondents’ costs of and incidental to this proceeding, to be taxed failing agreement

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

REASONS FOR JUDGMENT

REEVES J:

1    When judgment was delivered in this matter in August 2018 ([2018] FCA 1245) (the primary judgment), the applicants sought and obtained leave to file submissions on the question of costs. In those submissions, they contended that there should be no order as to costs in the proceeding for the following reasons. First, they relied upon the terms of the Declaration on the Rights of Indigenous Peoples (the Declaration) adopted by the General Assembly of the United Nations in September 2007 to contend that the extinguishment of native title that was at the centre of this proceeding was a matter of “singular public importance”. Secondly, they contended that, in pursuing this proceeding, they were not seeking to advance personal interests in the true sense, but they were instead seeking to preserve the group native title rights of the Wangan and Jagalingou People from extinguishment and, accordingly, they were pursing the proceeding in the public interest in the Oshlack sense (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11). On this aspect, they sought to emphasise the importance of native title and the rights of Indigenous peoples. Thirdly, they submitted that the issues of statutory construction that were raised by them in this proceeding concerning s 203BE(5) of the Native Title Act 1993 (Cth) (the NTA) and reg 7(2) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the ILUA Regulations) were important to the resolution of future native title litigation and the “future negotiation and registration of agreements providing for surrender of native title and extinguishment”.

2    In response, Adani Mining Pty Ltd (Adani), the first respondent, contended that, in the absence of some special circumstance, of which they submitted there was none, costs should follow the event, in accordance with the usual rule. With respect to the Declaration, it submitted it was entirely irrelevant. First, because it was a “non-binding resolution of the General Assembly” that had not been incorporated into Australian law and, secondly, because it had not been raised as an issue in the proceeding. Adani also disputed the applicants’ claim that they were acting in the public interest in pursuing the proceeding. It contended that the native title rights and interests that they were asserting were instead “personal and private”. In any event, they contended that the applicants constituted a minority of the Wangan and Jagalingou People and that the majority of those People had “overwhelmingly authorised” the making of the Indigenous Land Use Agreement at the centre of this proceeding. Further, while it accepted that “the public may have a real interest in native title litigation”, it contended the matters that the applicants had pursued relating to the extinguishment of native title in this proceeding did not raise a matter of public importance. Finally, Adani pointed out that the applicants had failed on all of the issues they raised relating to the construction of the NTA and ILUA Regulations because those issues were held to be unmeritorious. Accordingly, it contended that raising those construction issues did not provide a special circumstance for the usual rule not to apply.

3    Queensland South Native Title Services Limited (QSNTS), the second respondent, made similar contentions to those made by Adani above. In summary, they submitted: that the usual rule that costs ordinarily followed the event should apply; that the applicants’ claims in the proceeding had all been rejected in the primary judgment; that the applicants were not pursuing any public interest in the proceeding; and that the Declaration was “an aspirational document with no binding force” and was therefore irrelevant.

4    The State of Queensland, the third respondent, did not seek an order for costs against the applicants and therefore made no submissions on costs.

5    The Court has a broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs. Given this broad discretion, it is true, as the applicants pointed out in their submissions, that there is no automatic rule that costs follow the event. Nonetheless, that rule is usually followed unless there is some circumstance that would justify departure from it. For the following reasons, I do not consider that the applicants have identified any such circumstance in this matter. Accordingly, the costs in this proceeding should follow the event.

6    Dealing first with the Declaration, I agree with the submissions of the first and second respondents that it is irrelevant. As for the applicants’ contentions that they were acting in the public interest in pursuing this proceeding, none of their submissions has persuaded me to depart from the views I expressed in Burragubba v State of Queensland [2016] FCA 1525 (Burragubba), as follows (at [15]):

… it may be accepted that Mr Burragubba was not pursuing personal gain, in the monetary sense, but there can be little doubt that, in this proceeding, he was endeavouring to advance his views, and those of a group of persons within the Wangan and Jagalingou native title claim group, who were opposed to the Adani project. Their opposition was founded on the adverse effect they believed that project will have on the native title rights and interests that the Wangan and Jagalingou native title claim group claim to hold in the area of land and waters where it is proposed to construct that project. Regardless of how large that group was, it cannot, in my view, be characterised as a “section of the public” in the Oshlack sense. That is so because the interests concerned are quintessentially personal and private. They are native title rights and interests that can, in this case, only be held by the members of the Wangan and Jagalingou native title claim group. It follows that Mr Burragubba and the group from which he claims support were not pursuing the public interest in the Oshlack sense.

7    It is important to add that Burragubba was a proceeding involving similar parties and issues to those in this proceeding.

8    Finally, as the primary judgment reveals, the applicants’ claims in this proceeding were all rejected as unmeritorious. Given that outcome, I do not consider that the issues of statutory construction that they raised provide a circumstance that would justify departure from the usual rule. In this respect, it is worth mentioning the observations of the Full Court when it rejected a similar argument after dismissing the appeal from Burragubba above (Burragubba v State of Queensland (No 2) [2018] FCAFC 65). The Court said (at [9]):

As to the proper operation of the [Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act)] and Native Title Act, it cannot be the case that every challenge to the construction of either Act, or to any decision as to their individual or collective operations can be classified as an attempt to ensure their proper administration. Our reasons for dismissing the appeal demonstrate that, by reference to existing authorities and to the language of the statute, the appellant’s case is unmeritorious. We see no basis for concluding that his interest in bringing proceedings was the proper administration of the Native Title Act or the ADJR Act, rather than the vindication of his own views or advancement of his own interests.

To similar effect, see Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 at [27]–[30] per Edelman J and Burragubba at [7]–[9].

9    For these reasons, I will order that the applicants pay the first and second respondents’ costs of and incidental to this proceeding, to be taxed failing agreement.

Associate:    

Dated:    21 December 2018

SCHEDULE OF PARTIES