FEDERAL COURT OF AUSTRALIA BROWNLEY v STATE OF WESTERN AUSTRALIA [1999] FCA 1431 NATIVE TITLE – COSTS – whether application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a National Native Title Tribunal decision is an application that "relates to" native title – whether statutory disentitlement to costs in s 85A of the Native Title Act 1993 (Cth) applies – whether costs to follow event appropriate. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9 Federal Court of Australia Act 1976 (Cth) s 43 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 4(1), (4) Native Title Act 1993 (Cth) Pt 4; Div 1A; ss 35, 61, 79A, 80, 81, 85A, 169 Native Title Amendment Act 1998 (Cth) Pt 3 (Schedule 5) The Constitution ss 75, 76, 77(i), 81 Ward v State of Western Australia [1999] FCA 580 cited Abebe v Commonwealth of Australia (1999) 162 ALR 1 cited Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) (1997) 189 CLR 654 cited TREVOR JOHN BROWNLEY & ORS ON BEHALF OF THE BIBILA LUNGUTJARRA (WALJEN) PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS WAG 151 OF 1998 LEE J 20 OCTOBER 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 151 OF 1998 BETWEEN: TREVOR JOHN BROWNLEY & ORS ON BEHALF OF THE BIBILA LUNGUTJARRA (WALJEN) PEOPLE Applicants AND: THE STATE OF WESTERN AUSTRALIA First Respondent ANACONDA NICKEL LTD Second Respondent NATIONAL NATIVE TITLE TRIBUNAL Third Respondent JUDGE: LEE J DATE OF ORDER: 20 OCTOBER 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicants pay the costs of the first respondent. 2. The applicants pay the costs of the second respondent on the applicants' notice of motion filed 6 October 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 151 OF 1998 BETWEEN: TREVOR JOHN BROWNLEY & ORS ON BEHALF OF THE BIBILA LUNGUTJARRA (WALJEN) PEOPLE Applicants AND: THE STATE OF WESTERN AUSTRALIA First Respondent ANACONDA NICKEL LTD Second Respondent NATIONAL NATIVE TITLE TRIBUNAL Third Respondent JUDGE: LEE J DATE: 20 OCTOBER 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 Pursuant to the reasons delivered on 19 August 1999 in this matter, an order was made that the proceeding brought by the applicants in this Court be dismissed. The parties were invited to file submissions on orders for costs, and these reasons deal with the issues raised in the submissions duly filed. 2 The dismissed proceeding was brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). It sought an order setting aside a decision of the National Native Title Tribunal ("the Tribunal") on grounds for review provided by the ADJR Act. 3 As noted in the reasons delivered on 19 August 1999, the applicants did not rely upon the right to "appeal" to this Court on a question of law from the decision of the Tribunal provided by s 169 of the Native Title Act 1993 (Cth) ("the Act"). 4 The applicants submitted that s 85A of the Act, which provides that each party to a proceeding is to bear its own costs unless the Court orders otherwise, applied and that there were no circumstances in this proceeding that made it appropriate for the Court to make an order that the applicants bear the costs of any other party in the proceeding. (See: Ward v State of Western Australia [1999] FCA 580.) It may be noted that in their application the applicants sought an order for costs. 5 Alternatively, the applicants submitted that the litigation had been brought to test the "legality of governmental action" and performed a public service. It was said that the proceeding clarified the law and reduced the need for further litigation. 6 The applicants further submitted that in any event the applicants should not be ordered to pay the costs of the second respondent ("Anaconda"), which had been joined in the proceeding to be bound by the order sought. The only issues raised in the proceeding concerned the first respondent ("the State"). 7 The third respondent ("the Tribunal") filed a submitting appearance. 8 The State and Anaconda submitted that the ordinary rule, that costs follow the event, should apply and that the applicants should pay their costs. 9 Section 85A appears in Pt 4 of the Act (ss 79A – 94A). It was not in issue that, if relevant, the provisions of Pt 4, as amended by the Native Title Amendment Act 1998 (Cth) would apply. 10 Section 85A reads as follows: "85A Costs (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." 11 In setting out an "overview" of Pt 4, s 79A states: "This Part has the rules for processing Federal Court applications, and making determinations, relating to native title. Division 1A has the general rules,…" 12 Sections 80 and 81 are part of Div 1A and provide as follows: "80 Operation of Part The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title. 81 Jurisdiction of the Federal Court The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court." 13 It is plain that s 85A is not intended to apply to any proceeding other than a proceeding to which s 80 applies. Having regard to s 79A in the context of Pt 4 as a whole, the part should be read as setting out the "rules" for proceedings brought pursuant to the jurisdiction conferred on the Court by that Part, included within which "rules" is a "rule" in relation to the costs of such proceedings. 14 Part 4 came into operation on 30 September 1998. Pursuant to Pt 3 of Schedule 5 of the Native Title Amendment Act 1998 (Cth), on 30 September 1998 an application under s 61 of the Act for determination of native title lodged with the Tribunal, was "taken to be" an application made to the Federal Court. The applicants had lodged such an application with the Tribunal before that date. 15 The application by the applicants under the ADJR Act was filed in the Federal Court on 1 October 1998. 16 Pursuant to s 77(i) of the Constitution the jurisdiction of the Federal Court is defined by Parliament with respect to matters in which the High Court has original jurisdiction under s 75 of the Constitution, or in which original jurisdiction may be conferred on the High Court under s 76 of the Constitution. 17 Section 81 of the Act defines the jurisdiction of the Federal Court as a jurisdiction "to hear and determine applications filed in the Federal Court that relate to native title". That is the justiciable controversy that constitutes the matter in which jurisdiction is conferred on the Federal Court is that defined by the Act as an application that "relates" to native title, being an application that may be filed in the Federal Court in respect of which the Court may determine rights or obligations created or recognised by the Act. The applications which may be filed in the Federal Court which relate to native title are those set out in s 61 of the Act. The matter in respect of which jurisdiction has been conferred on the Federal Court is the justiciable controversy arising on the facts which form the foundation for the application filed in the Court. (See: Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Gleeson CJ, McHugh J at pars 22 et seq, Callinan J at pars 279 – 280.) 18 Section 80 applies the provisions of Pt 4 to proceedings "in relation to applications filed in the Federal Court that relate to native title", that is the provisions of Pt 4 apply to proceedings "in relation to" a matter that constitutes the justiciable controversy to be determined by the Court upon the application filed in the Federal Court under s 61 of the Act. 19 It appears from the context of Pt 4 that the words "in relation to" as used in s 80 are not intended to have a broader operation than the word "in". The provisions of Pt 4 are said to apply "in" proceedings rather than "to", and the provisions are directed only to proceedings in the Federal Court. Therefore, the proceedings contemplated in s 80, said to be proceedings in relation to a matter in respect of which exclusive jurisdiction is conferred on the Federal Court, are, in effect, proceedings in that matter. 20 An application for an order for judicial review under the ADJR Act seeking to quash a decision made by the Tribunal as a decision made without statutory power, is not an application for an order enforcing a duty imposed on the Tribunal by the Act but an application to enforce a duty imposed on the Tribunal by law that it not exceed the authority granted to it by the Act. (See: Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) (1997) 189 CLR 654 at 656 – 657.) 21 Furthermore, s 85A only applies to a proceeding in the Federal Court involving the exercise of the exclusive jurisdiction of the Federal Court under s 81 and not the exercise of jurisdiction in another matter. It is to be noted that a Supreme Court has concurrent jurisdiction with the Federal Court in respect of matters that form the jurisdiction conferred on the Federal Court by the ADJR Act. (See: ADJR Act, s 9; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"), ss 4(1), (4).) It would be most unlikely that Parliament intended to establish different "rules" in respect of the costs of litigation in a federal matter depending upon the choice of forum. 22 With regard to the operation of s 4 of the Cross-Vesting Act upon the provisions of s 81 of the Act, it may be said that although s 4 of the Cross-Vesting Act is intended to be an ambulatory provision, it would be overreached by any subsequent Commonwealth legislation which evidences a clear intention to confer exclusive jurisdiction on the Federal Court that is not subject to the provisions of the Cross-Vesting Act. The whole of the context of the Act suggests that s 81 reflects such an intention by Parliament. 23 Therefore, a proceeding under the ADJR Act of the character of this application is not a proceeding to which ss 80 and 85A of the Act apply and the question of costs in such a proceeding is governed by s 43 of the Federal Court of Australia Act 1976 (Cth) which provides that the award of costs is in the discretion of the Court. 24 As to whether the litigation was prosecuted by the applicants in the public interest, that contention may find some support in the fact that any development in this new field of law will serve a public purpose, but this proceeding, principally, was a challenge brought by the applicants to advance their private interests. 25 Earlier decisions of this Court have given clear guidance to the Tribunal on the application of the relevant law. The detailed reasons of the Tribunal show that it had applied the law so adumbrated. 26 As set out in the reasons delivered on 19 August 1999, the applicants sought to reargue questions of fact rather than establish the occurrence of an error on the part of the Tribunal in its understanding or application of the relevant law. 27 I am not persuaded that any reason has been demonstrated why the applicants should not pay the costs of the State in this proceeding. 28 However, with regard to Anaconda's costs, the circumstances are significantly different. 29 The application for review raised the single issue of whether the State had negotiated "in good faith" with the applicants. The State, as may be expected, carried the burden of upholding the Tribunal's decision that the State had so acted and that, accordingly, the Tribunal had jurisdiction to consider the application made to the Tribunal by Anaconda under s 35 of the Act. 30 Furthermore, on a preliminary application by the applicants, the Court had declined to direct the Tribunal not to deal with Anaconda's application pending the hearing of the applicants' application under the ADJR Act. The Tribunal had determined Anaconda's application before the hearing in this matter commenced. 31 Given that Anaconda's application to the Tribunal had not been impeded and that the real issues in the proceeding were between the applicants and the State, the degree to which Anaconda became involved in the proceeding was of its own choice. 32 At all times it was clear that the interests of Anaconda would be subsumed in those of the State which had carriage of the response to the application. 33 The costs payable by the applicants to Anaconda should be limited to the costs Anaconda incurred in resisting the applicants' application for an order that the Tribunal be restrained from dealing with Anaconda's application to the Tribunal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: Counsel for the Applicants: R I Viner QC P N Tolcon Solicitors for the Applicants: Messrs Mony de Kerloy Counsel for the First Respondent: S J Wright Solicitors for the First Respondent: Crown Solicitor for the State of Western Australia Counsel for the Second Respondent: C J L Pullin QC K J Green Solicitors for the Second Respondent: Huston Partners Date Submissions Filed: 2, 8 September 1999, 6 October 1999 Date of Judgment: 20 October 1999