FEDERAL COURT OF AUSTRALIA Bropho v City of Perth (No 2) [2016] FCA 1168 File number: WAD 261 of 2016 Judge: MCKERRACHER J Date of judgment: 27 September 2016 Catchwords: COSTS –whether provisions of Native Title Act 1993 (Cth) particularly s 85A can be taken into account in the exercise of the discretion to award costs –whether originating application brought within the 'spirit' of the Native Title Act – whether parties claiming to have pursued litigation in the public interest should be allowed to depart from the ordinary costs rules – whether there was a novel question of general importance Legislation: Federal Court of Australia Act 1976 (Cth) s 43(2) Native Title Act 1993 (Cth) ss 81, 85A Cases cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84 Bropho v City of Perth [2016] FCA 1098 Cheedy v Western Australia (No 2) [2010] FCA 1154 Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53 Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 Lardil Peoples v Queensland (2001) 108 FCR 453 Murray v Registrar, National Native Tribunal (2003) 132 FCR 402 Northern Territory v Doepel (No 2) [2004] FCA 46 Ruddock v Vadarlis (2001) 115 FCR 229 Date of hearing: Determined on the papers Date of last submissions: 17 September 2016 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Ms C Bahemia Solicitor for the Applicant: Carol Bahemia Lawyers Counsel for the First Respondent: Mr S J Wright Solicitor for the First Respondent: McLeods Barristers and Solicitors Counsel for the Second Respondent: The Second Respondent did not file submissions ORDERS WAD 261 of 2016 BETWEEN: BELLO BROPHO Applicant AND: CITY OF PERTH First Respondent STATE OF WESTERN AUSTRALIA Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 27 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The applicant pay the costs of the first respondent of the originating application, including the costs of first respondent's interlocutory application dated 24 June 2016 and any reserved costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: 1 On 8 September 2016 I delivered judgment dismissing the originating application filed by the applicant, Ms Bropho (Bropho v City of Perth [2016] FCA 1098 (Bropho No 1)). Although the City, as there defined, had already made submissions in relation to costs, there had been no response from Ms Bropho, so I ordered that the parties file submissions on costs. 2 These reasons deal with costs. 3 As Ms Bropho submits, the Court has a wide discretion in awarding costs, a discretion which should be exercised judicially. As Ms Bropho acknowledges, the ordinary rule is that costs follow the event and the successful party should receive its costs unless special circumstances justify some other order: Ruddock v Vadarlis (2001) 115 FCR 229 (at [11]). 4 A wide discretion is reflected in s 43(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and Ms Bropho, in particular, refers to s 85A of the Native Title Act 1993 (Cth) (NTA) which provides 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. 5 Ms Bropho makes the following submissions in support of a claim that there should be no order as to costs despite the outcome of the proceedings: (a) The Full Court in Lardil Peoples v Queensland (2001) 108 FCR 453 considered the meaning of a 'proceeding' for the purposes of s 85A NTA and found that an action pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) was not a proceeding to which s 85A NTA applied. (Although I noted that the Full Court's 'consideration' of this matter was a tangential reference to another case in passing); (b) In Murray v Registrar, National Native Tribunal (2003) 132 FCR 402 the Full Court held (at [27]-[28]) that, although the proceedings were not centrally concerned with provisions of the NTA, it was appropriate not to award costs (at first instance) as the proceedings dealt with the meaning of important provisions of the NTA, and was a case where it was appropriate to 'follow the spirit of subsection 85A(1) of the Act'; and (c) It is open to the Court, in relation to the exercise of the discretion conferred by s 43 FCA, to take the 'spirit' of s 85A NTA into account. In exercising that discretion, it is appropriate to take into account all relevant matters including the nature of the proceedings, whether important or novel questions are being responsibly pursued and the desirability of resolution of those questions without costs being imposed adversely as a penalty: see Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 (at [13]-[19]); Northern Territory v Doepel (No 2) [2004] FCA 46 (at [9]-[11] and [15]-[17]); Cheedy v Western Australia (No 2) [2010] FCA 1154 (at [8]). 6 As to Ms Bropho's application, she submits: (a) The proceedings were not pursuant to the AD(JR) Act; (b) The NTA was central to the application, which sought a declaration pursuant to s 211 NTA; (c) The non-extinguishment argument raised, being the validity of the relevant vesting, was novel and potentially important in that numerous portions of land in Western Australia were vested in similar terms; and (d) If successful, Ms Bropho would not have received any personal gain. A successful result would have allowed Ms Bropho to peacefully undertake her role as a female Nyungah elder on Matagarup (Heirisson Island). That role was essentially one of overseeing the smooth running of day to day issues amongst mainly homeless indigenous and non-indigenous people and a drug and alcohol free environment (Bropho No 1 (at [7]-[9])). 7 Taken as a whole, Ms Bropho says, these factors, including the desirability of resolution of these questions without costs being imposed adversely as a penalty, are such that the 'spirit' of s 85A NTA may be taken into account by the Court in the exercise of its discretion. The application satisfies the criteria set out in Lardil Peoples and Murray such as to allow the Court to exercise its discretion in the award of costs on the basis that costs should not be imposed adversely as a penalty. The appropriate disposition of the question of costs in the exercise of the discretion pursuant to s 43 FCA and taking into account the 'spirit' of s 85A NTA, is that there be no order as to costs. CONSIDERATION 8 It is clear from Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53 that s 85A NTA does not apply to the originating application filed by Ms Bropho and the resulting proceedings. In particular, Barker J noted (at [44]-[49]): 44 Under the prevailing authority of Lardil, the originating application made by Mr Corunna is not one that falls within the exclusive jurisdiction of the Court. On the basis that s 85A of the NTA only applies to an application of that nature, s 85A cannot apply in the circumstances of this proceeding. 45 It might be said there is good reason for such an outcome. It might be considered a surprising outcome if, by force of the expression in s 81 of the NTA - "and that jurisdiction is exclusive" - the Federal Court gained an exclusive jurisdiction in respect of proceedings commenced in the Federal Court under s 213(2) of the NTA. Certainly there is nothing in that provision or in s 39B(1A)(c) of the Judiciary Act to suggest that a proceeding commenced in the Federal Court under such provisions falls into the exclusive jurisdiction of the Court. 46 As Dowsett J noted in Lardil, at [158], in Brownley v Western Australia (No 2) (1999) 95 FCR 172, Lee J was concerned with an application for judicial review of a decision of the National Native Title Tribunal but concluded that such proceedings were not within the jurisdiction conferred by s 81 and therefore not subject to s 85A. Lee J observed, at [21], that the Federal Court's jurisdiction under the Administrative Decisions (Judicial Review) Act, under which that proceeding was brought, was not exclusive, and that: "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." 47 That is a valid and important point to note and it was a point of significance in Dowsett J's judgment in Lardil at [159]. 48 In short, it seems to me that I should apply the reasoning in Lardil because it is not plainly wrong. That reasoning precludes Mr Corunna's application being considered one to which s 81 and therefore s 85A of the NTA apply. 49 I find that s 85A does not apply to the exercise of the costs discretion in this proceeding. 9 As in Corunna, the originating application was not a proceeding to which s 81 NTA applies and therefore s 85A NTA is inapplicable. 10 I am not persuaded that there is further good reason, even 'taking into account the spirit of s 85A of the [NTA]' why costs should not follow the event in the ordinary course. In particular: (a) The originating application did not raise for consideration the correct interpretation of the NTA, but rather, its application. This can be contrasted with the cases referred to in Corunna and discussed by Barker J (at [53]-[58]). In that passage the remarks by his Honour also suggested that the expression 'taking into account the spirit of s 85A' quoted above may have been a little misunderstood. It was not intended to displace s 43 FCA. It was first used in a circumstance where s 85A clearly did apply anyway. Thereafter, its adoption has only been where important questions as to interpretation of the NTA have been raised. The relevant source of discretion as to costs arises from s 43 FCA; (b) As with Corunna (at [60]-[64]), the originating application could not be characterised as having been brought in the public interest. While the relief sought was expressed in terms which were wide enough to include other persons apart from just herself, Ms Bropho was the only named person who would benefit from the relief sought and there was no evidence that she was authorised to bring the application on behalf of others. Even if a limited group of others may benefit, that group is not broad enough to include 'the public'. Further, the fact that there may be some public interest will not be decisive: see the analysis of the Full Court of the concept of public interest in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84 (at [10]-[13]): 10 In Oshlack v Richmond River Council (1998) 193 CLR 72 the appellant had sought a declaration that a development consent order the council had granted was void and of no effect. Notwithstanding his failure to obtain such an order, the appellant was not ordered to pay the costs of the respondent. The New South Wales Court of Appeal reversed that order but the High Court, by majority, in turn allowed the appeal from the decision of the Court of Appeal. In the joint judgment of Gaudron and Gummow JJ (at [49]), their Honours said: [49] The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ: "Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area." Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that "something more" than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case. (footnotes omitted) Earlier in the judgment (at [20]) there was reference to the factors mentioned by their Honours. Those factors were: … (iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna". (iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation. (v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public. (footnotes omitted) 11 Subsequently, in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, Black CJ and French J observed (at [29]): This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may [sic] of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J. 12 As noted in Horn v Australian Electoral Commission [2008] FCA 43 (at [20]), the opportunities to challenge the decisions of a Minister or Commonwealth agency does not mean that a Minister or such agency should be deprived of an order in respect of their costs (see Save The Ridge Inc v Commonwealth (2006) 230 ALR 411 (at [17]-[18]) and Williams v Minister for Environment & Heritage (2004) 132 LGERA 368 per Gray J with Tamberlin J in agreement (at [40])). 13 Espousing the public interest alone is not a grant of general immunity from costs (Oshlack per Kirby J (at 123)). There is no general principle from Oshlack that usual costs orders should not apply if the subject matter of the litigation is a matter of public interest (Ruddock (No 2) (at [21])). The appellant appears to accept and we give importance to the observation by Burchett J in Australian Conservation Foundation v Forestry Commission (Tas) (1988) 81 ALR 166 (at [171]) where his Honour observed that just because a body is set up to pursue causes which its founders consider to be in the public interest (and which indeed may be in the public interest), it does not follow that those against whom it proceeds in court should be deprived of the ordinary protection of a right to a costs order in their favour in the event that the claim prove unfounded. (c) I accept the City's submissions that the originating application had no reasonable prospects of success because of the prior extinguishment over the area. It did not fail because of some technicality. CONCLUSION 11 In all the circumstances, Ms Bropho should pay the costs of the City. The State has not sought any order as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 27 September 2016