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 414Date 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 FEDERAL…
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- Case
- [2012] FCA 309
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.