mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fesl v Delegate of the Native Title Registrar [2008] FCA 1469
Outcome: considered
On 1 October 2008, the Court dismissed an application by the Applicants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) for an order of review in respect of a decision by the First Respondent, a Delegate of the Native Title Registrar (the Delegate), made on 14 April 2008 to register an Indigenous Land Use Agreement (ILUA) known as the Traveston Crossing Dam Indigenous Land Use Agreement on the register of Indigenous Land Use Agreements (the Register) pursuant to s 24CJ of the Native Title Act 1993 (Cth) (Native Title Act): Fesl v Delegate of the Native Title Registrar [2008] FCA 1469. The Delegate did not take an active part in the proceedings. Instead, and properly in the circumstances, she adopted the stance of abiding the order of the court and not wishing to be heard on any issue save as to costs. Upon the dismissal of the judicial review proceedings, the Delegate, through her solicitors, informed the Court that she sought no order as to costs against the Applicants. 2 The Second Respondent, Queensland Water Infrastructure Pty Ltd (QWI), did seek an order that the Applicants pay its costs of and incidental to the judicial review application. The Applicants had correctly identified QWI as a necessary respondent party in the proceedings. QWI took an active role as contradictor. 3 In deference to the helpful and comprehensive submissions in respect of costs made on behalf of QWI by Ms Bowskill of Counsel and by Mr Balzamo of Counsel on behalf of the Applicants, I did not make orders in respect of costs on 1 October 2008, but rather reserved my decision until today. It was common ground as between QWI and the Applicants that, strictly, the judicial review application was a proceeding under the AD(JR) Act not under the Native Title Act . There was though considerable debate as to the relevance, if any, in relation to the awarding of costs, of s 85A of the Native Title Act . That section provides as follows: Section 85A Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.
Case: Milne v Attorney-General For the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460
Outcome: considered
As to that discretion "it is a general rule that a wholly successful Defendant should receive his costs unless good reason is shown to the contrary": Milne v Attorney-General For the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460 , at 477. The discretion to award costs is nonetheless broad and unfettered, but it must be exercised judicially, not whimsically or capriciously, and that usually means that the proper exercise of the discretion will be that costs should follow the event.
Case: Murray v Registrar of the National Native Title Tribunal [2003] FCA 45
Outcome: considered
The Applicants drew my attention to an unreported decision of Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 and to the appellate sequel to that decision, Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 ; (2003) 132 FCR 402. Murray's case had a similar background to the present in the sense that it was an unsuccessful application pursuant to the AD(JR) Act for the Court to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an ILUA. At first instance (at para 9 and para 10), Marshall J stated: 9 Although not formally a matter arising under the Native Title Act , the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate "to follow the spirit of subs [85A(1)] of the Act"; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] , per O'Loughlin J. 10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray.
Case: Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 ; (2003) 132 FCR 402
Outcome: applied
The Applicants drew my attention to an unreported decision of Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 and to the appellate sequel to that decision, Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 ; (2003) 132 FCR 402. Murray's case had a similar background to the present in the sense that it was an unsuccessful application pursuant to the AD(JR) Act for the Court to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an ILUA. At first instance (at para 9 and para 10), Marshall J stated: 9 Although not formally a matter arising under the Native Title Act , the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate "to follow the spirit of subs [85A(1)] of the Act"; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] , per O'Loughlin J. 10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray.
Case: O'Mara v Minister for Lands (2008) 167 FCR 145
Outcome: considered
It is not apparent that the Full Court's judgment in the Lardil Peoples' case was drawn to the attention of either Marshall J or the Full Court in Murray's case. That does not mean, in my opinion, that the two Full Court decisions are irreconcilable. A proceeding under the AD(JR) Act is not a "proceeding" for the purposes of s 85A of the Native Title Act . In Brownley v Western Australia (No 2) [1999] FCA 1431 ; (1999) 95 FCR 172 , Lee J had reached just such a conclusion (at para 21). More recently, in O'Mara v Minister for Lands (2008) 167 FCR 145 , Reeves J reached a like conclusion. That does not mean that it is impermissible, in relation to the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act , to take into account the "spirit" of s 85A. That is what I propose to do and it seems to me that, sitting in the original jurisdiction, I am in any event bound by Murray's case so to do. Taking that consideration into account is influential but certainly not determinative in this particular case.
Case: Ruddock v Vadarlis (No2) (2001) 115 FCR 229
Outcome: considered
A comprehensive discussion of the principle in respect of the awarding of costs in this Court pursuant to the power conferred by s 43 of the Federal Court of Australia Act is to be found in the joint judgment of Black CJ and French J (as the Chief Justice then was), in Ruddock v Vadarlis (No2) (2001) 115 FCR 229 at 234, para 9 at et seq. At para 11 in the joint judgment in the Vadarlis (No 2) the following observations are made: 11 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: &#8226; Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. &#8226; Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. &#8226; A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) &amp; Ors (1986) ATPR 40-748 (at 48,136); approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 (at 222). 10 QWI, unsurprisingly, adopted the position that costs should follow the event with the "event" being the dismissal of the application. 11 That usual, civil jurisdiction position normally governs the costs sequel to an unsuccessful judicial review application in federal jurisdiction. A like position prevails in respect of costs in judicial review proceedings in England and Wales: The White Book, 2006 Edn Vol 1 para 54.16.17. In neither jurisdiction is there a statutory intrusion into the general costs discretion such as is found in s 49 of the Judicial Review Act 1991 (Qld) .
Case: The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453
Outcome: considered
QWI drew my attention to another decision of the Full Court, The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453. Materially in that case, Dowsett J, with whom in this regard French J agreed, had occasion to consider the meaning of the word "proceeding" for the purposes of the s 85A of the Native Title Act . His Honour reached the following provisional conclusion (at [157]): 157 If this construction is correct then with one possible exception, it follows that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by s 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See s 213(1. However that exception has no application for present purposes because the appellants have not sought to establish native title.
Case: The Lardil Peoples v State of Queensland [2001] FCA 464
Outcome: considered
The way the issue arose in that case moved the court to invite the parties to make submissions in respect of that particular provisional conclusion. Submissions were made but did not result in any change to that conclusion: see The Lardil Peoples v State of Queensland [2001] FCA 464.
Case: De Rose v South Australia (No 2) [2005] FCAFC 137
Outcome: followed
In De Rose v South Australia (No 2) [2005] FCAFC 137 at [8] - [10] , Wilcox, Sackville and Merkel JJ held that s 85A(1) is intended to remove any ground for anticipation or expectation that, unless cause were shown for another order, costs would follow the event. Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion. They said that there was no requirement that a threshold condition be met before the Court is empowered to make a costs order. Thus, the exercise of the discretion under s 85A(1) does not require a finding of a fact or the formation of an opinion that there has been unreasonable conduct or that special circumstances exist.
Case: McKenzie v South Australia [2006] FCA 891
Outcome: cited
However, they held that s 85A(2) of the Act puts beyond doubt the extent of the Court's discretion in cases where a party has acted unreasonably. That provision does not control or limit the discretion available to the Court under s 85A(1). Their Honours held that the matters to be taken into account in making a costs order were left to the Court's discretion, which had to be exercised judicially. They said that the starting point was that each party would bear its own costs unless the Court determined that it was appropriate in the circumstances to make an order for costs. They emphasised that the starting point was not that costs ordinarily followed the event. Their Honours followed what Lee J had said at first instance in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305 at 311-312 [31] - [37] . A similar approach has been taken in McKenzie v South Australia [2006] FCA 891 at [8] per Finn J and Reid v South Australia [2007] FCA 1479 at [53] - [54] per Finn J. In Reid [2007] FCA 1479 at [54] Finn J said that it is not proper to use the power to award costs to punish either a successful or unsuccessful party or to use it to operate as a deterrent to other would-be applicants.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: followed
It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed. 25 There is no absolute rule that the sole purpose of a costs order made under a provision such as s 43 of the Federal Court of Australia Act is to compensate one party at the expense of another under the Judicature Act system: Oshlack 193 CLR at 89 [43]. The general power conferred by s 43 is not to be narrowly construed. However, where there has been some delinquency on the part of an unsuccessful party, the Court has power to order costs against that party, and sometimes on a scale greater than party/party costs: Oshlack 193 CLR at 89 [44]; Probiotic [2008] FCAFC 5 at [48] .
Case: Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404
Outcome: cited
It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed.
Case: Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534
Outcome: referred to
The power to order costs under s 85A(2) is expressed in similar, but not identical terms, in the provisions of s 824(2) of the Workplace Relations Act 1996 (Cth) which were considered by Young J in Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534. He gave that section a wide construction on its plain and natural meaning: Paras 152 FCR at 538 [16]. But Young J held that the applicant for the order had to satisfy the Court that, relevantly, the other party's conduct 'involved unreasonable acts or omissions that caused the [party applying for the order] to incur costs': Paras 152 FCR at 539 [19]. 28 At the hearing of the costs argument, counsel for the Birri-Gubba People argued that in preparing a matter for trial, the litigious landscape often changes. He pointed to the fact that it could be expected in ordinary litigation that some issues which were hotly contested at an interlocutory stage might fall away by the time of the trial as minds became focused on the real issues. And, he pointed out that since at least March 2007 all parties had been on notice that the description of the claim group would have to change in light of the latest anthropological research obtained by Birri-Gubba People as to the correct identity of the persons who could claim native title over the relevant lands and waters in the vicinity of Cape Upstart. Counsel for the Birri-Gubba People also argued that there were practical problems with the funding available to the land council. 29 The land council is presently the representative body under the Native Title Act . It was entitled to prioritise and make determinations as to the funding, staff, resources and complexity of this matter as one of a number for which it was responsible. Counsel argued that there was no basis on which the Court's discretion under s 85A of the Native Title Act was enlivened to warrant the making of a costs order against the Birri-Gubba People. He argued that the jurisdiction to award costs under s 85A should be only be exercised in circumstances where there were special or unusual features of the case, or where there had been conduct in the nature of an abuse of process, improper purpose, contempt or unreasonableness. In essence, that argument sought to confine the Court's power to award costs to circumstances which would warrant an order for costs on an indemnity basis in ordinary civil litigation (that is, in litigation where the Court's power to award costs does not have the constraint of s 85A(1) of the Act).
Case: Probiotic Limited v The University of Melbourne [2008] FCAFC 5
Outcome: followed
It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed. 25 There is no absolute rule that the sole purpose of a costs order made under a provision such as s 43 of the Federal Court of Australia Act is to compensate one party at the expense of another under the Judicature Act system: Oshlack 193 CLR at 89 [43]. The general power conferred by s 43 is not to be narrowly construed. However, where there has been some delinquency on the part of an unsuccessful party, the Court has power to order costs against that party, and sometimes on a scale greater than party/party costs: Oshlack 193 CLR at 89 [44]; Probiotic [2008] FCAFC 5 at [48] .