Wreck Bay Aboriginal Community Council v Williams (No 2)

[2017] ACTCA 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Wreck Bay Aboriginal Community Council v Williams (No 2)

Citation:

[2017] ACTCA 56

Written submissions:

30 October and 20 November 2017

DecisionDate:

1 December 2017

Before:

Murrell CJ, Burns and Mossop JJ

Decision:

1.        There is no order as to costs as between the appellant and the Attorney-General of the Australian Capital Territory

Catchwords:

COURT OF APPEAL – PRACTICE AND PROCEDURE – Costs – Attorney-General intervener – whether intervener should pay a portion of the successful party’s costs – consideration of s 27(4) of the Court Procedures Act 2004 (ACT) – whether “special reasons” exist for making an order for costs against the Attorney-General – no “special reasons” found – no order as to costs

Legislation Cited:

Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth), s 46

Court Procedures Act 2004 (ACT), ss 27, 27(4)

Residential Tenancies Act 1997 (ACT)

Cases Cited:

Jess v Scott (1986) 12 FCR 187

Parties:

Wreck Bay Aboriginal Community Council (Appellant)

The Attorney-General for the Australian Capital Territory (Intervener)

Representation:

Counsel

R J Arthur (Appellant)

P Garrison SC (Intervener)

Solicitors

Ken Cush & Associates (Appellant)

ACT Government Solicitor (Intervener)

File Number:

ACTCA 49 of 2016

Decision under appeal: 

Court/Tribunal:             Supreme Court of the Australian Capital Territory

Before:  Elkaim J

Date of Decision:          25 August 2016

Case Title:  Wreck Bay Aboriginal Community Council v Williams

Citation: [2016] ACTSC 240

THE COURT:

Introduction

1. The appellant and respondent in this appeal agreed that as between themselves there should be no order as to the cost of the appeal. The appellant, however, sought a costs order against the Attorney-General who intervened in the proceedings pursuant to s 27 of the Court Procedures Act 2004 (ACT). That section provides:

27 Right of Attorney-General to intervene in proceedings

(1) This section applies if any of the following are in issue in a court proceeding or proceeding before the ACAT:

(a) the interpretation or validity of a law of the Territory or Commonwealth;

(b) legislative or executive powers of the Territory or Commonwealth, or an instrumentality or agency of the Territory or Commonwealth;

(c) judicial powers of a court or tribunal established under the law of the Territory or Commonwealth.

(2) The Attorney-General may intervene in the proceeding, on behalf of the Crown, to submit argument on the issue.

(3) If the Attorney-General intervenes in a proceeding under this section, the Attorney-General has the same right of appeal in the proceeding as a party to the proceeding.

(4) If the Attorney-General intervenes in a proceeding under this section, and there are in the opinion of the court or ACAT special reasons for making an order under this subsection, the court or ACAT may make an order for costs against the Crown to reimburse the parties to the proceeding for costs occasioned by the intervention.

(5) In this section:

Attorney-General includes the Attorney-General for the Commonwealth, the Attorney-General for each State and the Attorney-General for each other Territory.

Crown includes the Crown in right of the Commonwealth, the Crown in right of each State and the Crown in right of each other Territory.

1. It should be noted that s 27(4) requires the Court to be satisfied that there are “special reasons” for making a costs order and that any costs order is limited to “costs occasioned by the intervention”.

1. In Jess v Scott (1986) 12 FCR 187 at 195 the full court of the Federal Court said in relation to the expression “special reasons”:

It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule …

Appellant’s submissions

1. The appellant accepted that s 27 involves a departure from the ordinary rule that costs should follow the event. However the appellant submitted that the privileged position of the Attorney-General in relation to costs should not extend to involvement in a matter which strays outside the proper basis for intervention. In the present case the appellant submitted that although s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (‘LG Act’) was capable of broad application across a range of ACT laws applied in the Jervis Bay Territory (‘JBT’), no relevant ACT interests would be affected by its operation in relation to the Residential Tenancies Act 1997 (ACT) (‘RT Act’) and no administrative responsibilities arising from the application of the RT Act to the JBT were affected. In those circumstances the appellant characterised the intervention as “gratuitous”. The appellant submitted that the Attorney-General failed on each of the arguments made in opposition to the appellant’s case. The appellant accepted that it is unable to say with any precision what additional work was involved however submitted that the Attorney-General’s submissions required close analysis and the consideration of additional authorities. It submitted that the intervener should pay 35% of the appellant’s costs of the appeal.

Attorney-General’s submissions

1. The Attorney-General submitted that it is not enough to establish “special reasons” that the arguments advanced by the Attorney-General were unsuccessful or that the appellant incurred a marginal increase in costs as a result of the Attorney-General’s intervention. So far as the basis for the intervention was concerned, the Attorney-General pointed out that he did not intervene in the proceedings at first instance but did write to the parties to assist them in identifying the correct principles for the operation of s 46 of the LG Act. This led to the appellant filing an amended special case which included questions 3 and 4 which were the questions answered by the Court below and by this Court. The Attorney‑General then intervened in the appeal because:

(a)the proceedings concerned the interaction of the RT Act and the LG Act;

(b)the ACAT was required to determine tenancy disputes in the JBT under the RT Act;

(c)the Attorney-General was concerned to ensure that the applicable law was correctly stated for the Court of Appeal; and

(d)the intervention occurred at a point when the Attorney-General was unaware whether the respondent would be represented by counsel. 

1. The Attorney‑General submitted that his submissions did not stray outside a proper basis for intervention.  Finally the Attorney-General submitted that the intervention only slightly extended the hearing, that the submissions broadly agreed with the position outlined by the respondent and that the hearing concluded within the time allocated for the matter.  He pointed to those issues in relation to which the Court appears to have been assisted by the submissions of the Attorney-General.

Decision

1. Section 27(4) clearly involves a modification of the usual rule in relation to costs. It limits the circumstances in which a costs order may be made against an Attorney-General who intervenes under the section. It requires the court or ACAT to reach the conclusion that there are special reasons for the making of a costs order against an Attorney-General who has intervened under the section.

1. The interpretation of the relationship between the LG Act and the RT Act was an issue which would only have limited consequences for the ACT. The most significant was that it would affect the workload of the ACAT insofar as it was required to determine matters arising under the RT Act relating to Aboriginal Land under the LG Act. However, there were more general questions relating to the relationship between ACT and Commonwealth laws which arose in the case. While it was not a case which, because of the subject matter, compelled intervention by the Attorney-General, it was a case in which it was reasonable for the Attorney-General to intervene. The Attorney-General’s intervention did not have the effect of substantially lengthening the hearing. While responding to the Attorney-General’s written submissions would have required additional work on the part of the appellant, that process was one which refined the issues in dispute and was of assistance to the Court. We are not satisfied that there are special reasons that would warrant the making of the costs order sought by the appellant or indeed any costs order against the Attorney-General.

Order

1. The order of the Court is: 

1.    There is no order as to costs as between the appellant and the Attorney‑General of the Australian Capital Territory.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 1 December 2017