FEDERAL COURT OF AUSTRALIA Fesl v Delegate of the Native Title Registrar (No 2) [2008] FCA 1479 COSTS – Application under Administrative Decisions (Judicial Review) Act 1997 (Cth) for review of decision by a delegate of the Native Title Registrar to register an Indigenous Land Use Agreement - application to review decision unsuccessful – whether circumstances of the case warrant departure from ordinary rule as to costs – where reasonableness of review application and public importance of issues raised warrant departure from ordinary rule as to costs – relevance of s 85A of the Native Title Act - no order as to costs Federal Court of Australia Act 1976 (Cth) s 43 Administrative Decisions (Judicial Review Act) 1977 (Cth) Native Title Act 1993 (Cth) ss 24C, 24CJ, 85A Aboriginal Cultural Heritage Act 2003 (Qld) Judicial Review Act 1991 (Qld) s 49 Brownley v Western Australia (No 2) (1999) 95 FCR 172 considered Duncan v Chief Executive Officer, Centrelink (No 2) [2008] FCA 667 considered Fesl v Delegate of the Native Title Registrar [2008] FCA 1469 considered Milne v Attorney-General For the State of Tasmania (1956) 95 CLR 460 considered Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 considered Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402 applied Northern Territory v Doepel (No 2) [2004] FCA 46 considered O'Mara v Minister for Lands (2008) 167 FCR 145 considered Ruddock v Vadarlis (No2) (2001) 115 FCR 229 considered The Lardil Peoples v State of Queensland (2001) 108 FCR 453 considered The Lardil Peoples v State of Queensland [2001] FCA 464 considered EVE MUMEWA FESL, NURDON SERICO and TEX CHAPMAN v LINDA BLUE, DELEGATE OF THE NATIVE TITLE REGISTRAR and QUEENSLAND WATER INFRASTRUCTURE PTY LTD QUD157 of 2008 LOGAN J 2 OCTOBER 2008 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD157 of 2008 BETWEEN: EVE MUMEWA FESL First Applicant NURDON SERICO Second Applicant TEX CHAPMAN Third Applicant AND: LINDA BLUE, DELEGATE OF THE NATIVE TITLE REGISTRAR First Respondent QUEENSLAND WATER INFRASTRUCTURE PTY LTD Second Respondent JUDGE: LOGAN J DATE OF ORDER: 2 OCTOBER 2008 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD157 of 2008 BETWEEN: EVE MUMEWA FESL First Applicant NURDON SERICO Second Applicant TEX CHAPMAN Third Applicant AND: LINDA BLUE, DELEGATE OF THE NATIVE TITLE REGISTRAR First Respondent QUEENSLAND WATER INFRASTRUCTURE PTY LTD Second Respondent JUDGE: LOGAN J DATE: 2 OCTOBER 2008 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 1 October 2008, the Court dismissed an application by the Applicants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act)for an order of review in respect of a decision by the First Respondent, a Delegate of the Native Title Registrar (the Delegate), made on 14 April 2008 to register an Indigenous Land Use Agreement (ILUA) known as the Traveston Crossing Dam Indigenous Land Use Agreement on the register of Indigenous Land Use Agreements (the Register) pursuant to s 24CJ of the Native Title Act 1993 (Cth)(Native Title Act): Fesl v Delegate of the Native Title Registrar [2008] FCA 1469. The Delegate did not take an active part in the proceedings. Instead, and properly in the circumstances, she adopted the stance of abiding the order of the court and not wishing to be heard on any issue save as to costs. Upon the dismissal of the judicial review proceedings, the Delegate, through her solicitors, informed the Court that she sought no order as to costs against the Applicants. 2 The Second Respondent, Queensland Water Infrastructure Pty Ltd (QWI), did seek an order that the Applicants pay its costs of and incidental to the judicial review application. The Applicants had correctly identified QWI as a necessary respondent party in the proceedings. QWI took an active role as contradictor. 3 In deference to the helpful and comprehensive submissions in respect of costs made on behalf of QWI by Ms Bowskill of Counsel and by Mr Balzamo of Counsel on behalf of the Applicants, I did not make orders in respect of costs on 1 October 2008, but rather reserved my decision until today. It was common ground as between QWI and the Applicants that, strictly, the judicial review application was a proceeding under the AD(JR) Act not under the Native Title Act. There was though considerable debate as to the relevance, if any, in relation to the awarding of costs, of s 85A of the Native Title Act. That section provides as follows: Section 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. 4 The Applicants' submissions did not, in terms, suggest that s 85A of the Native Title Act was the source of such power as the Court had to award costs, but rather suggested that the sentiments evident in s 85A ought to be taken into account in the exercise of a discretion in respect of costs. 5 The starting point then should be the identification of the source of the Court's power to award costs in a proceeding under the AD(JR) Act and general principles which attend the awarding of costs in the exercise of that power in civil proceedings. 6 It was common ground that the source of the Court's power to make an order in respect of costs was s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). Materially, that section provides: Section 43 Costs (1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. 1(A) … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. 7 So far as a proceeding under the AD(JR) Act is concerned, prior authority does not support a conclusion that s 85A of the Native Title Act provides an express exception in relation to the general discretion in respect of costs for which s 43(2) of the Federal Court of Australia Act provides. 8 As to that discretion "it is a general rule that a wholly successful Defendant should receive his costs unless good reason is shown to the contrary": Milne v Attorney-General For the State of Tasmania (1956) 95 CLR 460, at 477. The discretion to award costs is nonetheless broad and unfettered, but it must be exercised judicially, not whimsically or capriciously, and that usually means that the proper exercise of the discretion will be that costs should follow the event. 9 A comprehensive discussion of the principle in respect of the awarding of costs in this Court pursuant to the power conferred by s 43 of the Federal Court of Australia Act is to be found in the joint judgment of Black CJ and French J (as the Chief Justice then was), in Ruddock v Vadarlis (No2) (2001) 115 FCR 229 at 234, para 9 at et seq. At para 11 in the joint judgment in the Vadarlis (No 2) the following observations are made: 11 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: · Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. · Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 (at 48,136); approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 (at 222). 10 QWI, unsurprisingly, adopted the position that costs should follow the event with the "event" being the dismissal of the application. 11 That usual, civil jurisdiction position normally governs the costs sequel to an unsuccessful judicial review application in federal jurisdiction. A like position prevails in respect of costs in judicial review proceedings in England and Wales: The White Book, 2006 Edn Vol 1 para 54.16.17. In neither jurisdiction is there a statutory intrusion into the general costs discretion such as is found in s 49 of the Judicial Review Act 1991 (Qld). 12 What then of s 85A the Native Title Act? 13 The Applicants drew my attention to an unreported decision of Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 and to the appellate sequel to that decision, Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402. Murray's case had a similar background to the present in the sense that it was an unsuccessful application pursuant to the AD(JR) Act for the Court to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an ILUA. At first instance (at para 9 and para 10), Marshall J stated: 9 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. 10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray. 14 In the result, His Honour made no order as to costs, save in respect of what he regarded as the costs of an unreasonable opposition by the applicant to the joinder of an appropriate contradictor party. On appeal, the Full Court (Spender, Branson and North JJ) observed (at [28]) of the passage just quoted, "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". Their Honours took a different view as to the way in which the costs discretion ought to be exercised on the appeal, awarding costs against the unsuccessful appellant. 15 In Northern Territory v Doepel (No 2) [2004] FCA 46, having referred to Murray's case both at first instance and on appeal, Mansfield J observed (at [17]): [17] It would clearly be remiss to adopt a rule, that where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the 'spirit' of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Acct, and involved consideration of the particular sections directly how that function was to be conducted. I have therefore included some consideration in the exercise of my discretion. I respectfully agree with His Honour's observation. 16 In the circumstances of that case, Mansfield J considered that costs should nonetheless follow the event. 17 QWI drew my attention to another decision of the Full Court, The Lardil Peoples v State of Queensland (2001) 108 FCR 453. Materially in that case, Dowsett J, with whom in this regard French J agreed, had occasion to consider the meaning of the word "proceeding" for the purposes of the s 85A of the Native Title Act. His Honour reached the following provisional conclusion (at [157]): 157 If this construction is correct then with one possible exception, it follows that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by s 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See s 213(1. However that exception has no application for present purposes because the appellants have not sought to establish native title. 18 The way the issue arose in that case moved the court to invite the parties to make submissions in respect of that particular provisional conclusion. Submissions were made but did not result in any change to that conclusion: see The Lardil Peoples v State of Queensland [2001] FCA 464. 19 It is not apparent that the Full Court's judgment in the Lardil Peoples' case was drawn to the attention of either Marshall J or the Full Court in Murray's case. That does not mean, in my opinion, that the two Full Court decisions are irreconcilable. 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. Taking that consideration into account is influential but certainly not determinative in this particular case. 20 In their written submissions, the Applicants submitted that the following were relevant considerations tending against an award of costs against them in favour of QWI: 8. There is nothing in this case unreasonable about the conduct of the Applicants wishing by the application to scrutinize the decision of the Delegate to register the ILUA in circumstances where: (a) There are significant aboriginal cultural heritage issues involved as a consequence of the proposed dam; (b) One of the Applicants Eve Fesl is the Aboriginal Party for the area concerned under the Aboriginal Cultural Heritage Act (Qld); (c) All of the Applicants are Elders of the Gubbi Gubbi People and as such are traditional custodians of the heritage of their people; and (d) The application although no under the NTA did involve a construction of important provisions of that Act relating to ILUA's. 21 As to item (a), there may or may not be significant aboriginal cultural heritage issues involved as a consequence of the proposed dam. That is not a subject in respect of which the Delegate made or was obliged to make an affirmative finding of fact. I accept that the Applicants genuinely believe that there may be such issues. It is important to recall that their status as persons aggrieved is that they are persons who "claim" to hold native title. There has been no determination that either they or they as part of a wider group hold native title in respect of some or all of the project area. There is evidence that Dr Fesl is an "Aboriginal party" for the area in terms of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). That status certainly gave her an interest in the interface between that Act and the Native Title Act in the circumstances of this case, quite apart from her status as an identified member of the "native title group". Item (c) reflects what I accept is a genuine belief on the part of the Applicants, but the conclusion of the Delegate, which I have held to be reasonably open on the evidence before her, was that the Applicants are members of a wider group with Gubbi Gubbi being but one alternative spelling. 22 I accept that the judicial review proceeding, although not under the Native Title Act, did involve a construction of important provisions of that Act relating to ILUAs. As in Doepel (No 2), there is a public importance in some of the issues which arose in this case and those issues were novel. Further, it was, with respect, properly conceded by QWI that the judicial review application could not be described as frivolous or vexatious. There was an apparent disparity of resources available as between QWI and the Applicants. QWI (which is wholly owned by the State of Queensland) appeared by senior and junior counsel. The Applicants appeared by their solicitor, save for 1 October 2008 when junior counsel appeared to make submissions in respect of costs. My impression is that, within the limits of available resources, the Applicants prosecuted this application with due diligence. It is true, as QWI submitted, that the ground in respect of which the Applicants enjoyed a degree of forensic success, ground 2, was added relatively late in the course of proceedings and at a time when the bulk of QWI's preparatory costs must necessarily be regarded as having been incurred. Nonetheless, the addition of the ground did not extend the hearing of the application beyond one day. 23 The Applicants found themselves in a position whereby, because of what I have held to be an overly narrow conception on the part of the Delegate of what she could take into account in making a registration decision, they did not have the benefit of a considered decision, albeit from an administrative official, in respect of the worth of their submission that the "CHIMA" provisions found in Sch 3 to the Agreement had the effect, having regard to s 24CE(1) of the Native Title Act and the ACHA, of making that agreement unlawful either in whole or in part and hence incapable in that form of registration under s 24CJ of the Native Title Act. The issue was a novel one. It is also important to remember that a consequence of the registration of an ILUA is that future acts under such an agreement which affect native title are valid. A judicial review proceeding either under the AD(JR) Act or otherwise, challenging a registration decision on this basis was the only alternative left to the Applicants. The native title which they claimed to have would otherwise would subject to such effects as the dam building project may visit upon it. In making the observation, I do not ignore that none of the Applicants is a registered claimant much less that none has the benefit of a determination of native title in respect of any part of the project area. 24 The proceedings are nonetheless not wholly in the public interest. In a sense, the Applicants were seeking to preserve a private, albeit group, claim in respect of native title. Further, I do not ignore a remark by the Delegate in her reasons that one factor at least in the Applicants' opposition to the agreement was environmentally based, rather than based on a claim to native title alone. 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 para 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]. 26 In this case, the Applicants did reasonably bring the judicial review proceeding. QWI was not a party charged with the administration of the registration of ILUAs under the Native Title Act. Its interests though could hardly be described as private. It is an emanation of the State of Queensland specifically charged with the construction of a project considered necessary for the supplementation of the water supply in South East Queensland. It had a very particular public interest in the due administration and construction of the provisions governing the registration of an area agreement in the Native Title Act. In that regard, and in the face of a submission by QWI to the contrary, the Applicants have at least secured this Court's guidance as to matters which the Registrar and delegates can and should take into account when deciding a registration application. 27 The factors for and against the making of an order for costs as sought by QWI are certainly not all one way. On the balance, in my opinion, in the particular circumstances of this case, there should not be an award of costs in favour of QWI against the Applicants. In voicing that opinion, I have taken into account whether, if not appropriate to award QWI all its costs, some percentage order might alternatively be made. 28 The further order that I make in the proceedings is therefore that there be no order as to costs, either in respect of the costs of the First Respondent or in respect of the costs of the Second Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 2 October 2008 Counsel for the Applicants: Mr Balzamo Solicitor for the Applicants: Black & Co Lawyers Solicitor for the First Respondent: Holding Redlich Lawyers Counsel for the Second Respondent: Ms Bowskill Solicitor for the Second Respondent: McCullough Robertson Lawyers Date of Hearing: 1 October 2008 Date of Judgment: 2 October 2008