The Australian Heritage Commission v Mount Isa Mines Ltd

[1997] FCA 1282

FEDERAL COURT OF AUSTRALIA

Practice and Procedure - application to the Full Court of the Federal Court, pursuant to leave reserved (as varied by the High Court), regarding the costs of an appeal to the Full Court, where one of the three Judges who constituted the Full Court on the hearing of the appeal is no longer a member of the Court.

Federal Court of Australia Act 1976 - s 14(3)

THE AUSTRALIAN HERITAGE COMMISSION V MOUNT ISA MINES LIMITED

REASONS FOR JUDGMENT ON COSTS, NO.2

QG 99 OF 1994

JUDGES:	BLACK CJ AND BEAUMONT J
PLACE:	BRISBANE
DATE:	21  NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 99  of   1994

BETWEEN:	THE AUSTRALIAN HERITAGE COMMISSION         APPELLANT
AND:	MOUNT ISA MINES LIMITED          RESPONDENT
JUDGES:		BLACK CJ AND BEAUMONT J
DATE OF ORDER:		21  NOVEMBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

The respondent pay the appellant’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 99 of 1994

BETWEEN:	THE AUSTRALIAN HERITAGE COMMISSION        APPELLANT
AND:	MOUNT ISA MINES LIMITED        RESPONDENT

JUDGES:	BLACK CJ AND BEAUMONT J
DATE:	21 NOVEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT ON COSTS, NO.2

BLACK CJ:
When the High Court of Australia allowed the appeal against the decision of the Full Court of the Federal Court in this matter, it varied Order 3 made by the Full Court so as to reserve liberty to either party, within 28 days of the publication of the reasons for judgment of the High Court, to apply in writing to the Full Court for the costs of the appeal to that Court: see (1997) 142 ALR 622 at 631. Pursuant to the leave originally reserved, the Australian Heritage Commission (“the Commission”) applied for costs and the Full Court ordered that the respondent pay one-half of the appellant’s costs of the appeal.

The Commission has now applied for an order, pursuant to the leave reserved as varied by the High Court, for the costs of the appeal to the Full Court of the Federal Court or, at least and in any event, a proportion of such costs greater than the one-half originally ordered in their favour.

The appeal to the Full Court of this Court concerned the answers that the primary judge gave to two of the questions that had been ordered to be decided separately, before the trial of the respondent’s application for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The question of the costs of the appeal to the Full Court now has to be considered in the light of the Commission’s successful appeal to the High Court.  Viewed in that light, it is apparent that the appellant failed in its challenge to the answers given to one of the two questions the subject of its appeal, and succeeded in respect of the other answer.  Although both answers were important, I think it is true to say that the answer in respect of which the Commission was ultimately successful was of fundamental importance to the administration and operation of the Australian Heritage Commission Act 1975 (Cth). In the circumstances, I remain of the view expressed in my reasons for judgment on costs delivered on 15 February 1996 that the degree of success of the appellant is such that it should receive all of its costs of the appeal.

One of the three judges who constituted the Full Court on the hearing of this appeal,
Beazley J, is no longer a member of this Court, having resigned to become a member of the New South Wales Court of Appeal.  Since, however, the remaining judges are two in number and both parties consent, this matter may be dealt with by a Full Court constituted by the remaining judges: see Federal Court of Australia Act 1976, s 14(3).

I certify that this and the preceding one (1) page is a true copy of the reasons for judgment herein of the Honourable Chief Justice Black

Acting Associate:

Dated:             21 November 1997

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 99 of 1994

BETWEEN:	THE AUSTRALIAN HERITAGE COMMISSION APPLICANT
AND:	MOUNT ISA MINES LIMITED RESPONDENT

JUDGES:	BLACK CJ AND BEAUMONT J
DATE:	21 NOVEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT ON COSTS, NO.2

BEAUMONT J:

I agree, for the reasons given by the Chief Justice, that in the present circumstances, the respondent should pay the appellant’s costs of the appeal.

I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             21 November 1997

Solicitor for the Appellant:	Australian Government Solicitor
(written submissions dated 14 April 1997)
Solicitor for the Respondent:	Allen Allen & Hemsley (written submissions dated 26 May 1997)
Date of Judgment:	21 November 1997