QGC Pty Limited v Bygrave

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FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2012] FCA 309

Citation: QGC Pty Limited v Bygrave [2012] FCA 309
Parties: QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR, RUSSELL DOCTOR, ELAINE GEORGETOWN, VERONICA JARRETT, RHONDA SANDOW, ROGER KNOX, CYRIL LOGAN AND GARY WOODBRIDGE IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE BIGAMBUL PEOPLE’S NATIVE TITLE CLAIM (QUD 101 OF 2009), BOB WEATHERALL and NTSCORP LIMITED ACN 098 971 209
File number: QUD 101 of 2011
Judge: REEVES J
Date of judgment: 27 March 2012
Catchwords: 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 successful – whether 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 – public interest elements in private interest litigation – liability of a contradictor or intervener for costs – whether a body with statutory responsibilities as a party in private interest litigation is liable for costs
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth)
Aboriginal Land Act 1991 (Qld)
Cases cited: Attorney-General for the State of Western Australia v Marquet (2003) 217 CLR 545; [2003] HCA 67
Brownley v Western Australia (No 2) (1999) 95 FCR 172; [1999] FCA 1431
Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2010] FCA 1154
Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176; [2008] FCA 1479
Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748
Kemp v Native Title Registrar (2006) 153 FCR 38, [2006] FCA 939
Latoudis v Casey (1990) 70 CLR 534
Murray v Registrar of the Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220
Northern Territory of Australia v Doepel (No 2) [2004] FCA 46
O’Mara v Minister for Lands (2008) 167 FCR 145; [2008] FCA 51
O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232
QGC Pty Limited v Bygrave [2011] FCA 1457
Ritter v Godfrey [1920] 2 KB 47
Ruddock v Vardalis (No 2) (2001) 115 FCR 229; [2001] FCA 1865
The Lardil Peoples v State of Queensland (2001) 108 FCR 453; [2001] FCA 414
Date of last submissions: 13 January 2012
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: Mr G Hiley QG with Ms H Bowskill
Solicitor for the Applicant: McCullough Robertson
Solicitor for the First Respondent: Holding Redlich
Counsel for the Second Respondent: Mr D Rangiah SC
Solicitor for the Second Respondent: Just Us Lawyers
Counsel for the Third and Fourth Respondents: Ms S Phillips
Solicitor for the Third and Fourth Respondents: NTSCORP Limited

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Details
Case
[2012] FCA 309
Decision Date

CaseChat Overview and Summary

The case of QGC Pty Limited v Bygrave involved a dispute over the refusal by Ms Bygrave, as a delegate of the Native Title Registrar, to register an Indigenous Land Use Agreement (ILUA) between QGC and the Bigambul People. QGC sought judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The legal issues centred around whether the public importance of the issues raised warranted a departure from the ordinary rule that costs follow the event, particularly in light of the statutory responsibilities of NTSCORP as a contradictor in the proceedings. The court was also required to consider whether a body with statutory responsibilities as a party in private interest litigation could be liable for costs.

The court found that while the proceedings involved public interest considerations, the primary focus was on private rights held by the Kamilaroi/Gomeroi People and the Bigambul People. The court acknowledged the assistance provided by NTSCORP's submissions but ultimately determined that the private interests pursued by NTSCORP outweighed the public interest elements. The court held that the usual rule as to costs, where costs follow the event, should apply. Consequently, the court ordered NTSCORP to pay the costs of QGC and the Bigambul People.

This decision underscores the balance between public interest considerations and private rights in litigation, and reaffirms the principle that costs should ordinarily follow the event unless special circumstances are present. The outcome highlights the importance of statutory responsibilities in litigation and the need to consider the specific circumstances of each case when determining costs.

Orders

Orders of the court

1. The fourth respondent pay the costs of the applicant and the second respondent in relation to these proceedings.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Before going to the submissions made in support of these various applications, it is necessary to briefly outline some of the background to these proceedings. That is set out hereunder.FACTUAL BACKGROUND QGC commenced these proceedings under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). It sought to challenge a refusal by Ms Bygrave, in her capacity as a delegate of the Native Title Registrar, to register an agreement as an Indigenous Land Use Agreement (ILUA) under Div 3 of Subdiv C of Pt 2 of the Native Title Act 1993 (Cth) (the Act). The agreement in question was made between QGC and Mr Russell Doctor and others in their capacity as the registered native title claimant for the Bigambul People’s native title claim. The Bigambul People’s claim, which was filed in 2009, covers the same area. In these reasons I will refer to this area as the Bigambul area and the agreement in question as the QGC–Bigambul agreement. Mr Weatherall is the Chairman of the Kamilaroi Land Trust. That body is a Land Trust incorporated under reg 19 of the Aboriginal Land Regulation 1991 (Qld). NTSCORP is a representative Aboriginal/Torres Strait Islander body under Pt 11 of the Act. Its area of responsibility covers the State of New South Wales. Thus, the northern boundary of its area of responsibility is the Queensland–New South Wales border which is also the southern boundary of the Bigambul area. Nonetheless, it represented the Kamilaroi/Gomeroi People who claimed to hold native title in land and waters on both sides of the Queensland–New South Wales border, including a part of the Bigambul area. The representative Aboriginal/Torres Strait Island body with responsibilities under the Act for the Bigambul area is Queensland South Native Title Services. It is not a party to the proceedings. Both NTSCORP and Mr Weatherall made submissions to Ms Bygrave on behalf of the Kamilaroi/Gomeroi People objecting to QGC’s application to register the QGC–Bigambul agreement. Ms Bygrave took those submissions into account in rejecting QGC’s application. As I recorded in my reasons for judgment ([2011] FCA 1457 at [10]), NTSCORP and Mr Weatherall were joined as parties to these proceedings by order of Dowsett J, in part, to provide a contradictor to QGC’s application. This arose because it became apparent that Mr Doctor and others on behalf of the Bigambul People had a common interest with QGC in supporting the registration of the QGC–Bigambul agreement as an ILUA under the Act. As well, Ms Bygrave, as the primary decision-maker, indicated that, consistent with the Hardiman ruling, she would submit to the orders of the Court. QGC was ultimately successful in its challenge to Ms Bygrave’s refusal to register the QGC–Bigambul agreement. Accordingly, I made orders setting aside that decision and directing Ms Bygrave to enter the QGC–Bigambul agreement on the Register of ILUAs under the Act.CONTENTIONS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Doepel, Mansfield J expressed similar sentiments about the important public interest considerations involved in construing provisions of the Act, as follows (at [11]:It is plain enough that the judicial exposition or clarification of what is intended by certain legislation is in the public interest, as well as resolving the particular dispute between the parties. To varying degrees, there is an element of public interest in many cases. Moreover, where the Commonwealth or a State or Territory is the applicant in a proceeding it will very commonly be seeking to maintain a position in the public interest. I use ‘public interest’ in a wider sense than simply seeking to recover a claimed indebtedness, for example a taxation liability, even though in a sense the recovery of such indebtedness might also be fairly described as in the public interest. The majority in Ruddock said at 236, [14]:‘In any event it must be recognised that the concept of the “public interest” is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.’ (Emphasis in original)CONCLUSION There is no doubt that these proceedings involved the construction of various provisions of the Act dealing with the registration of ILUAs and that they therefore had an important public interest component to them. There is also little doubt that the submissions Ms Phillips made on behalf of NTSCORP were, at least in part, made in the discharge of NTSCORP’s role as a contradictor in these proceedings. On this point, I acknowledge the assistance I obtained from those submissions. Nonetheless, in the final analysis, I consider that these factors are outweighed by the various factors identified above. Dominant among them are the private, albeit community or group, interests NTSCORP was pursuing for the Kamilaroi/Gomeroi People in this litigation. As well, I consider it is significant that NTSCORP’s intervention in these proceedings was the original and direct cause of QGC and the Bigambul People having to incur the legal costs they did in pursuing these proceedings. In these circumstances, I consider it is only fair and just that they should be compensated for those costs. For these reasons, the usual rule as to costs should be applied in these proceedings, viz that costs follow the event. Accordingly, I propose to order that NTSCORP pay the costs of QGC and the Bigambul People in relation to these proceedings.

Ratio Decidendi

Legal Principle Established

As I have already noted above (at [1]), Ms Bygrave did not seek any order for costs in her favour and submitted that no such order should be made against her in favour of any other party.CONSIDERATION Under s 43 of the Federal Court of Australia Act 1976 (Cth), the Court has a general discretion to award costs: see, for example, Ruddock v Vardalis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 (Ruddock) at [9]. It is well-established that, in the absence of special circumstances, costs ordinarily follow the event: see, for example, Ritter v Godfrey [1920] 2 KB 47 at 52–3, Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748 at 48,136 per Toohey J and Ruddock at [11]. It is also well-established that the function of a costs order is compensatory: costs orders are not made to punish an unsuccessful party: see Latoudis v Casey (1990) 70 CLR 534 (Latoudis) at 543 per Mason CJ, 563 per Toohey J and 567 per McHugh J. In her submissions, Ms Phillips essentially relied upon three circumstances to attempt to displace the usual approach that costs follow the event. They were, first, that NTSCORP had been joined as a contradictor to assist the Court. Secondly, that in acting as a party to these proceedings, NTSCORP was discharging its statutory responsibilities under the Act. And, thirdly, that the importance of the issues involved for the construction of the Act attracted the “spirit” of s 85A, which provision generally stands against costs being ordered in native title proceedings. I will deal with these circumstances together because the considerations underlying them overlap to a large extent. On the liability of a contradictor for costs, Ms Phillips relied upon the observations of Kirby J in Attorney-General for the State of Western Australia v Marquet (2003) 217 CLR 545; [2003] HCA 67 (Marquet) (at [219]) as follows:Contradictors’ costs should be paid: … The amici were necessary participants in these proceedings. By their submissions, they helped crystallise the competing contentions. At stake were constitutional issues transcending the interests of private litigants. Although, in the result, in my view, the amici fail, it is difficult to see how the proceedings could have been conducted without them. The Court might have been forced to require the appointment of a contradictor. In such circumstances, the costs of that person would have had to be borne by the State, the constitutional law of which was in question. A number of things may be said about the application of these observations in these proceedings. First, Kirby J was in a minority of one on this contradictor costs issue in Marquet. The other five members of the Court were all of the view that the amici should pay their own costs: see at [86] per Gleeson CJ, Gummow, Hayne and Heydon JJ and at [303] per Callinan J. Of course, this is far removed from an order that NTSCORP pay costs, which is what QGC and the Bigambul People are seeking here. Secondly, these proceedings did not involve constitutional issues nor, in my view, did they involve public interests that transcended the interests of private litigants. To the contrary, in my view, these proceedings were closely aligned to private interest litigation. QGC’s primary interest in this litigation was in having the QGC–Bigambul agreement registered as an ILUA so that it could carry out “future acts” on the Bigambul area as a part of the Curtis LNG Project: see [2011] FCA 1457 at [14]. This was clearly a private commercial interest. The main impediment to the registration of the agreement as an ILUA, was the claim by the Kamilaroi/Gomeroi People that they held native title rights and interests in a part of the Bigambul area that entitled them to a direct say in the authorisation of the QGC–Bigambul agreement under the Act. Their direct opponents on that issue were the Bigambul People. They claimed they were the community or group that held the native title rights and interests in the whole of the Bigambul area. So, as between the Kamilaroi/Gomeroi People and the Bigambul People, the critical issue in contention was: who holds the native title rights and interests in that part of the Bigambul area where the claims of the Bigambul People and the Kamilaroi/Gomeroi People overlapped? At the heart of that dispute were the benefits that the QGC–Bigambul agreement would come to provide (if registered as an ILUA) to whichever community or group held those native title rights and interests. While such native title rights and interests are generally understood to be communal or group rights, I do not consider that makes them public rights. Instead, I consider those rights and interests and the correlated benefits that would come to be provided under the QGC–Bigambul agreement are, in essence, private rights held by the community or group concerned on behalf of the individuals who make up that community or group. That being so, I consider the Kamilaroi/Gomeroi People and the Bigambul People were both pursuing private rights in this litigation and it therefore constitutes private interest litigation as between them.