FEDERAL COURT OF AUSTRALIA Burragubba v State of Queensland [2016] FCA 1525 File number: QUD 344 of 2015 Judge: REEVES J Date of judgment: 16 December 2016 Catchwords: COSTS – application for costs – whether there should be a departure from the rule that costs ordinarily follow the event – whether there are special circumstances justifying some other order – whether s 85A of the Native Title Act 1993 (Cth) should be taken into account in the exercise of the Court's discretion to award costs Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Native Title Act 1993 (Cth) Cases cited: Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 Burragubba v State of Queensland [2016] FCA 984 Oshlack v Richmond River Council (1998) 193 CLR 72 Date of hearing: Determined on the papers Date of last submissions: 2 September 2016 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr D Yarrow Solicitor for the Applicant: Anderson Fredericks Turner Solicitor for the First Respondent: Crown Solicitor of Crown Law Counsel for the Second Respondent: Mr B O'Donnell QC with Mr A Stumer Solicitor for the Second Respondent: Herbert Smith Freehills Counsel for the Third Respondent: The Third Respondent filed a submitting notice ORDERS QUD 344 of 2015 BETWEEN: ADRIAN BURRAGUBBA Applicant AND: STATE OF QUEENSLAND First Respondent ADANI MINING PTY LTD Second Respondent NATIONAL NATIVE TITLE TRIBUNAL Third Respondent JUDGE: REEVES J DATE OF ORDER: 16 December 2016 THE COURT ORDERS THAT: 1. The applicant is to pay the second respondent's costs of this proceeding, including any reserved costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REEVES J: 1 In Burragubba v State of Queensland ([2016] FCA 984) (Burragubba No 1), I dismissed Mr Burragubba's application for judicial review of a decision of a member of the National Native Title Tribunal (the liability reasons). At the time that judgment was delivered, the parties were ordered to file submissions directed to the question of costs. 2 In Mr Burragubba's submissions, he accepted that the usual rule was that costs ordinarily followed the event. Nonetheless, he relied upon the following grounds to contend that there were special circumstances which meant the usual rule should not apply and, instead, each party should be required to bear their own costs of the proceeding: (a) albeit that his application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), it involved the first judicial consideration of certain provisions of the Native Title Act 1993 (Cth) (the NTA), and the "spirit" of s 85A of the NTA should therefore be taken into account in the exercise of the Court's discretion to award costs. Specifically, his application raised arguable grounds about the construction of the NTA which were of considerable importance in the future administration of the "right to negotiate" provisions of Part 2, Division 3, Subdivision P of the NTA. (b) his conduct of the litigation was not unreasonable; and (c) he did not pursue a personal interest in his application, the litigation had a "public character", and there were members of the Wangan and Jagalingou native title claim group who "shared [his] stance", in the Oshlack sense (Oshlack v Richmond River Council (1998) 193 CLR 72). 3 The State of Queensland, the first respondent, elected not to make any submissions on the question of costs. 4 However, Adani Pty Ltd, one of the other respondents in the proceeding, did. It sought an order that Mr Burragubba pay its costs of the proceeding, including reserved costs, relying on the usual rule mentioned above. 5 Addressing the three grounds advanced by Mr Burragubba above to avoid such an order, Adani submitted: (a) The present case was not one in which the "spirit" of s 85A of the NTA ought to inform the exercise of the Court's discretion as to costs. While that principle may be relevant to the extent that the issues in a judicial review application involved the construction of provisions of the NTA, in this case, a substantial part of Mr Burragubba's case (ground 1) was not concerned with the construction of the NTA at all, but rather involved Mr Burragubba making serious allegations of dishonesty against its officers so as to enliven the "fraud" ground of review under s 5(1)(g) of the ADJR Act. Further, while parts of Mr Burragubba's case (grounds 2, 3 and 4) did involve the construction of s 39 of the NTA, the construction for which he contended was strained, impractical and contrary to the plain terms of that provision. Moreover, that construction had been rejected by the National Native Title Tribunal on multiple occasions in the past and it was inconsistent with the practice adopted by that Tribunal over the past 15 years. (b) Mr Burragubba sought to amend his application for judicial review on a number of occasions during the first day of the hearing and that resulted in an adjournment and the necessity for Adani to file further written submissions. Consequently, Mr Burragubba acted unreasonably in the manner in which he conducted his case. (c) Mr Burragubba brought his application in his personal capacity. He confirmed that in the further and better particulars he provided dated 19 November 2015, where he stated as much and he stated he did not claim to have been authorised to act on behalf of the "representatives group" in bringing his application. Further, his application was made in circumstances where the native title party, which had the right to be heard before the Tribunal and to appeal the Tribunal's decision, did not appear before the Tribunal, did not appeal the Tribunal's decision and did not seek judicial review of the Tribunal's decision. The course Mr Burragubba adopted was therefore contrary to the position taken by the native title party and that entity was the statutory body responsible for representing the interests of the Wangan and Jagalingou native title claim group before the Tribunal. 6 For the following reasons, I consider Adani's submissions should be accepted and Mr Burragubba's rejected. 7 First, the question of taking account of the "spirit" of s 85A of the NTA in this situation was considered at an earlier stage of this proceeding where Mr Burragubba had sought leave to amend his originating applications: Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163. In that decision, Edelman J reviewed the relevant authorities on this question and rejected Mr Burragubba's contention that he could rely upon it to avoid an order that he pay the costs thrown away by his amendment. His Honour concluded (at [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. 8 To underscore the concluding words "should, at best, be limited to these circumstances", his Honour went on to propose a number of rhetorical questions to demonstrate the limits to which this principle would extend, as follows (at [30]): … 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? 9 In my view, the first of these questions applies aptly to this matter. To it, I would add the question inferentially posed by Adani: would it extend to an issue involving the construction of the NTA no matter how tenuous that issue? In my view, both these questions must be answered unfavourably to Mr Burragubba. 10 On the first, by my rough estimate, the vast majority of the affidavit evidence filed for the hearing and approximately two-thirds of the written and oral submissions were devoted to the "fraud" issue raised by ground 1 of Mr Burragubba's application. In making this estimate, I do not include the materials relied upon by the State of Queensland. Most of its materials were devoted to the NTA construction issue, which may explain why it has not sought an order for its costs. Mr Burragubba's remaining three grounds together raised questions of procedural fairness (ground 2) and the two NTA construction issues upon which Mr Burragubba relied (grounds 3 and 4). Nonetheless, having regard to the estimates above, I consider that the two NTA construction issues can fairly be characterised as peripheral to the central and main issue Mr Burragubba raised against Adani in this proceeding: the "fraud" issue raised by ground 1. 11 Furthermore, and in any event, I do not consider the NTA construction issues raised by Mr Burragubba were sound, or reasonably arguable. Mr Burragubba essentially raised two NTA construction issues: the proper meaning of the expression "native title party" in s 39(1) of the NTA and the question whether, where there were multiple members of a native title party, those persons were able to discharge their responsibilities individually, or were required to conduct them collectively. On the first, as I explained in the liability judgment, the expression "native title party" is expressly defined in the NTA in a way which plainly excludes the construction for which Mr Burragubba contended: see Burragubba No 1 at [283]. On the second, as I also explained in the liability reasons, Mr Burragubba's contentions were patently unworkable and stood against the longstanding practice of the National Native Title Tribunal: see Burragubba No 1 at [292]–]293]. 12 Further still, I agree with Adani that Mr Burragubba's conduct of this litigation wasted time and increased the costs for the other parties. A not insignificant part of the first day of the hearing was taken up by a series of amendments that Mr Burragubba sought to make to his originating application. That series of amendments necessitated an adjournment of the hearing (originally fixed for two days) and the need for the other parties to file further written submissions. I specifically mentioned this conduct in the liability judgment: see Burragubba No 1 at [128]. It is also worth noting that this series of amendments was the second occasion upon which Mr Burragubba had sought to amend his originating application. The first occasion was before Edelman J, as mentioned above (see at [7]). 13 Finally, I do not consider there is any merit in Mr Burragubba's proposition that he was not pursuing a personal interest in this proceeding, but was instead acting in the public interest. To advance this proposition, Mr Burragubba particularly relied upon three of the six factors that were identified as relevant considerations by Gaudron and Gummow JJ in Oshlack (at [20] and [49]). They were: (iii) the appellant's motivation in litigation was to secure obedience to environmental law, not personal gain; (iv) a significant number of members of the public shared the appellant's stance and in that sense there was a "public interest" in the outcome of the litigation; and (v) the basis of the challenge was arguable and raised "significant issues" of interpretation and administration of the relevant legislation. 14 I have already rejected [13(v)] above (see at [11]) on the ground that Mr Burragubba's construction of the apposite provisions of the NTA was not reasonably arguable. 15 As to the other two factors, 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. 16 This is not to deny that the public does not have a real interest in native title litigation, nor that the matters raised by Mr Burragubba in this proceeding did not contain a public interest element. As McHugh J remarked in Oshlack (at [71]): Much litigation concerns the public interest. Prosecutions and most constitutional and administrative law matters almost invariably affect or involve the public interest. So do many ordinary civil actions concerning private rights and duties. Many defamation actions, for example, involve the defence of fair comment on a matter of public interest or the truth of an imputation that "relates to a matter of public interest". 17 Nonetheless, the presence of this public interest element in this proceeding does not give rise to any special circumstance that would justify my departing from the usual rule on costs. 18 For these reasons, I will order that Mr Burragubba pay Adani's costs of this proceeding, including any reserved costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 16 December 2016