Houston v State of New South Wales & Anor

[2020] HCATrans 203

[2020] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2020

B e t w e e n -

ROBERT ALEXANDER HOUSTON

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 NOVEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   On 10 September 2020, the plaintiff filed an application for a constitutional writ.  For the reasons that I now publish the application is dismissed with costs.

The orders of the Court are:

1.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff is to pay the first defendant’s costs.

I publish those orders and the reasons.  I direct that the reasons be incorporated into the transcript.

On 10 September 2020, the plaintiff filed an application for a constitutional writ by which he claims certiorari to quash two decisions of the Federal Court of Australia (“the Federal Court”):  Houston v State of New South Wales[1] (Griffiths J) and Houston v State of New South Wales[2] (Jagot J), together with mandamus directing the Federal Court to reconsider his application for a maximum costs order.  In the alternative, the plaintiff claims a declaration that proceedings NSD 1513 of 2019 in the Federal Court may be described as “litigation which is in the public interest”.

[1][2020] FCA 502.

[2][2020] FCA 1099.

The plaintiff is a farmer who owns agricultural land at Mungindi in northern New South Wales. In December 2018, the plaintiff was charged by summons filed in the Land and Environment Court of New South Wales (“the LEC”) with the commission of offences contrary to s 12 of the Native Vegetation Act 2003 (NSW) (“the NV Act”). It is alleged that the plaintiff cleared, or authorised the clearing of, native vegetation otherwise than in accordance with a development consent or a property vegetation plan, as required under the NV Act. The plaintiff is liable to penalties of up to 10,000 penalty points upon conviction and he may also be subject to an order requiring him to carry out remedial work or to pay the State to carry out such work.

In June 2019, the plaintiff commenced proceedings in the original jurisdiction of this Court challenging the validity of provisions of the NV Act including s 12. On 3 September 2019, the proceedings were, by consent, remitted to the Federal Court.

In an interlocutory application filed on 27 February 2020 in the Federal Court proceedings, the plaintiff applied for an order that the maximum party and party costs which either party might recover from the other is nil[3].  Griffiths J dealt with the application on the papers, a course that was not opposed by the plaintiff[4]. His Honour described the plaintiff’s claim in broad outline as contending that provisions of the NV Act, the Biodiversity Conservation (Saving and Transitional) Regulation 2017 (NSW) and Pt 5A of the Local Land Services Act 2013 (NSW) are inoperative or wholly invalid because they have a disproportionate and/or discriminatory effect on his farming operations. The plaintiff acknowledged that his challenge to this legislative scheme involves a novel approach to s 51(xxxi) of the Constitution[5].

[3]Federal Court Rules 2011 (Cth), r 40.51.

[4]Houston v State of New South Wales [2020] FCA 502 at [10].

[5]Houston v State of New South Wales [2020] FCA 502 at [13]‑[15].

There was substantial agreement between the parties before the primary judge as to the principles guiding the exercise of the Court’s discretion under r 40.51 of the Federal Court Rules 2011 (Cth). His Honour approached the application upon the basis that the normal rule, that costs are awarded to compensate the successful party, can be displaced in an appropriate case. His Honour agreed with Drummond J’s observations in Hanisch v Strive Pty Ltd[6] to the effect that the object of providing for a maximum costs order is to limit the exposure to costs in litigation involving less complex issues and the recovery of moderate amounts of money, albeit the making of such an order may be appropriate in other cases[7].

[6](1997) 74 FCR 384 at 387.

[7]Houston v State of New South Wales [2020] FCA 502 at [19]‑[20].

The primary judge rejected the plaintiff’s submission that the proceeding was to be characterised as “public interest litigation”.  His Honour considered that the “public interest” nature of the litigation was not to be assessed at a level of abstraction that is divorced from the particular claims made by the plaintiff and their strength.  These considerations, together with the plaintiff’s self‑interest in the outcome of the proceedings, were against describing the proceedings as “public interest litigation”[8].

[8]Houston v State of New South Wales [2020] FCA 502 at [29]‑[30].

The primary judge took into account his assessment that the proceedings are likely to take up five days of hearing time and involve complex issues[9].  His Honour assessed that the plaintiff’s claims do not appear to be very strong[10].  Among other considerations, his Honour referred to the parallel proceedings in the LEC.  His Honour said these had relevance both in demonstrating the plaintiff’s personal interest in having the impugned legislation invalidated and because of the need for courts to be wary of encouraging the fragmentation of criminal proceedings[11].  His Honour concluded that the proceeding was not a suitable case in which to make an order that the maximum cost each party can recover from the other is nil[12].

[9]Houston v State of New South Wales [2020] FCA 502 at [32].

[10]Houston v State of New South Wales [2020] FCA 502 at [36].

[11]Houston v State of New South Wales [2020] FCA 502 at [43].

[12]Houston v State of New South Wales [2020] FCA 502 at [44]‑[45].

An appeal may not be brought from an interlocutory judgment of the Federal Court without leave[13].  Jagot J refused leave to appeal on the ground that the plaintiff had failed to establish that the primary decision was attended by sufficient doubt to warrant its reconsideration by an appellate court[14].

[13]Federal Court of Australia Act (1976) (Cth), s 24(1A).

[14]Houston v State of New South Wales [2020] FCA 1099 at [46].

No appeal to this Court lies from the refusal of leave to appeal from a decision of the Federal Court determining an application for leave to appeal[15].  Against this background, the plaintiff brings the present proceeding contending that both the decision of the primary judge and the decision of Jagot J are attended by jurisdictional error and/or error of law on the face of the record.

[15]Federal Court of Australia Act 1976 (Cth), s 33(4B)(a).

It is apt to undermine the orderly administration of justice to allow proceedings commenced in this Court’s original jurisdiction to serve as an alternative means of challenge to decisions of superior courts that are subject to statutory rights of appeal[16]. There is no warrant for this Court to issue certiorari to quash the primary judge’s decision in circumstances in which leave to appeal from the decision has been refused. Nor should the commencement of proceedings in the original jurisdiction be allowed to serve to circumvent the preclusion of appeals to this Court from the refusal of leave to appeal from interlocutory decisions on unremarkable matters of practice and procedure. For the reasons to be given, the application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

[16]Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8‑9 [22] per Nettle J; 338 ALR 360 at 367; Waters v Federal Court of Australia and the Judges Thereof [2015] HCATrans 347 at lines 619-621 per Gageler J; CAN 078 272 867 Pty Ltd (In liq) v Deputy Commissioner of Taxation (2011) 86 ALJR 4 at 13 [60] per Heydon J; 282 ALR 607 at 619.

The challenge to Jagot J’s decision does not identify with any particularity the asserted error of law on the face of the record much less identify in what respect her Honour is said to have exceeded her jurisdiction.  The plaintiff’s argument assumes, without the citation of any authority, that certiorari will issue to quash a decision of the Federal Court for error of law on the face of the record[17].  The argument also assumes that Jagot J’s reasons form part of the record.  It is unnecessary to address the correctness of either assumption in circumstances in which no arguable ground of challenge to her Honour’s decision is advanced.

[17]cf R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 377 per Mason J, at 388‑9 per Deane J and at 397 per Dawson J; Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 11 [35] per Nettle J; 338 ALR 360 at 371.

The plaintiff contends that Jagot J misunderstood the test for the determination of his application for leave to appeal.  The contention is put this way:

“[B]y finding that there was not sufficient doubt about the correctness of the primary judge’s decision [Jagot J] also misunderstood the test to be applied when considering whether the matter warranted a grant of leave to appeal.”

Self‑evidently, this circular argument does not identify the claimed error in her Honour’s understanding of the test.  The accepted test is stated in the joint reasons in Decor Corporation Pty Ltd v Dart Industries Inc[18].  It has two limbs.  The first limb asks whether in all the circumstances the decision is attended by sufficient doubt to warrant its reconsideration by the appellate court.  The second limb asks whether substantial injustice would result if leave were refused supposing the decision to be wrong.  These limbs are cumulative, and leave ought not to be granted unless both are made out[19].

[18](1991) 33 FCR 397 at 398‑399.

[19]Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 at 11 [38], citing Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 at 38 [5].

Jagot J determined that the application failed the first limb; the application did not disclose sufficient doubt as to the correctness of the primary judge’s decision to warrant reconsideration of the matter by the appellate court[20].  The plaintiff’s complaint is not with the application of the test but with the conclusion.  In particular, the challenge is to Jagot J’s treatment of the primary judge’s finding that the proceedings are “public interest litigation”.  The plaintiff complains that the primary judge failed to take into account evidence of his motivation for commencing and maintaining the proceedings.  As Jagot J observed, the primary judge was not bound to refer to every item of evidence on which the plaintiff relied[21].  Her Honour did not accept that the primary judge treated the plaintiff’s personal interest in the outcome of the proceeding as determinative against characterising it as “public interest litigation”.  Jagot J correctly observed that it was open to the primary judge to give the fact of the plaintiff’s personal interest weight in the overall evaluation of the nature of the proceedings[22].

[20]Houston v State of New South Wales [2020] FCA 1099 at [4].

[21]Houston v State of New South Wales [2020] FCA 1099 at [30], [33].

[22]Houston v State of New South Wales [2020] FCA 1099 at [31]‑[32].

The plaintiff acknowledges that whether litigation merits the characterisation of “public interest litigation” is an evaluative judgment.  And the plaintiff acknowledges that proceedings do not merit such a characterisation merely because they challenge the validity of legislation that affects a segment of the community.  The contention that Jagot J erred in holding that it was open to the primary judge to hold that the proceeding is not “public interest litigation” is unsustainable.

The plaintiff also complains that he was denied procedural fairness by the primary judge’s failure to invite him to comment on the finding that the proceedings encourage the fragmentation of the parallel LEC proceedings.  In his application for leave to appeal, the plaintiff sought to adduce further material concerning the LEC proceedings.  Jagot J held that the plaintiff had ample opportunity to put this material before the primary judge and to make such submissions as he cared concerning the relevance of the LEC proceedings to the application[23].  The unparticularised contention that her Honour’s approach in this respect reveals “a fundamental misunderstanding and misapplication of the fair hearing rule going to the court’s jurisdiction” is also unsustainable.

Nothing in the material filed in support of the application identifies an arguable basis for a successful challenge to the refusal of leave to appeal from this discretionary determination of a matter of practice and procedure. 

Orders

For these reasons there will be the following orders:

[23]Houston v State of New South Wales [2020] FCA 1099 at [43].

1.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff is to pay the first defendant’s costs.

AT 9.31 AM THE MATTER WAS CONCLUDED