Burragubba v Minister for Natural Resources and Mines & Anor

[1] By an application for a statutory order of review under the Judicial Review Act 1991 (Qld) (the Act), the applicants sought two orders:

• (a) an order setting aside the decision of the first respondent (the Minister) to grant mining leases applied for by the second respondent (Adani); and
• (b) costs.

[2] The applicants pursued both orders in their written submissions before me, although they added a claim that the decision ought be remitted to the Minister for decision according to the law once it was set aside.

[3] On 25 November 2016 I dismissed the applicants' application: see Burragubba v Minister for Natural Resources and Mines [2016] QSC 273. I set a timetable for the provision of written submissions on the order I should make in relation to the costs of the proceeding. Submissions were subsequently filed as follows:

• (a) by the applicants on 2 December 2016;
• (b) by the Minister on 7 December 2016; and
• (c) by Adani on 7 December 2016.

[4] I had not dealt with the submissions when a notice of appeal dated 16 December 2016 was filed. The appeal was disposed of by judgment dated 22 August 2017: see Burragubba v Minister for Natural Resources and Mines [2017] QCA 179. The Court of Appeal ordered that the appeal be dismissed and that the applicants pay the respondents costs of the appeal.

[5] It is necessary now to deal with the question of the costs of the application before me.

[6] The original application for a statutory order of review was an application by Mr Burragubba (as first applicant) and four other natural persons (as the second applicants). The applicants had the same legal representation before me and had all joined in the one set of written submissions on the merits, and, indeed, on the question of costs. There is no reason to differentiate between the applicants in considering the costs order which should be made. No submission to the contrary was made on their behalf.

[7] Each of the successful respondents has submitted that costs should follow the event.

[8] Despite the fact that the applicants were content to seek a costs order in their favour if they had succeeded, they now contend that:

• (a) an order should be made under s 49(1)(e) of the Act that each party bear only their own costs of the proceeding; or
• (b) alternatively, that I should exercise my discretion under r 681 of the Uniform Civil Procedure Rules 1999 (Qld), to make no order as to costs.

[9] For reasons which follow, I am not persuaded that it is appropriate to make any order other than that costs should follow the event.

[10] It is appropriate to identify the relevant law.

[11] First, the applicants have made an application under s 49(1)(e) of the Act. It is true that the application was not contained in the originating application and was only made after the applicants failed before me. However, despite some contrary indications, s 49(1)(e) is to be taken to authorize an order about costs incurred before the making of a "costs application" under s 49(1): see Foster v Shaddock [2016] QCA 163.

[12] Second, if an application for costs falls within the scope of s 49, it is the provisions of that section which will govern the Court's discretion as to costs: Anghel v Minister for Transport (No. 2) [1994] QCA 232; [1995] 2 Qd R 454.

[13] Third, in considering an application under s 49(1), I must have regard to the considerations made relevant by s 49(2). In this regard, the relevant considerations are:

• (a) the financial resources of the applicants: s 49(2)(a);
• (b) whether the proceeding involves an issue that affects or may affect the public interest in addition to any personal right or interest of the applicants: s 49(2)(b); and
• (c) whether the proceeding discloses a reasonable basis for the review application: s 49(2)(c).

[14] Fourth, although the s 49(2) considerations are mandatory, they are not to be regarded as exhaustive: Sharples v Council of the Queensland Law Society [2000] QSC 392 per Mullins J at [25]-[26]; Alliance to Save Hinchinbrook Inc v Cook [2005] QSC 355 per Jones J at [4]. The most obvious relevant consideration - which is not mentioned in s 49(2) - is the manner of disposition of the review application.

[15] Fifth, s 49(4) of the Act provides that subject to s 49, the ordinary rules regarding costs under the Uniform Civil Procedure Rules apply. The relevant rule is r 681, which provides that the costs are in the discretion of the Court but follow the event unless the Court orders otherwise.

[16] In support of their contention that I should make an order that each party bear only their own costs of the proceeding, the applicants rely on the three considerations referred to in s 49(2), namely:

• (a) a contention that they have very limited financial resources;
• (b) a contention that their application involved an issue of public interest, essentially because they contended that it was not made in support of purely private interests, in that it involved (1) the protection of alleged native title interests, (2) the question of law next mentioned, and (3) a motivation by the applicants to ensure the proper administration of the Mineral Resources Act 1989 (Qld); and
• (c) a contention that their originating application disclosed a reasonable basis in that it called for the determination of a question of law that had not previously been decided, namely the extent of the application of the principles of natural justice to the Minister's determination of an application for a mining lease under the Mineral Resources Act.

[17] As to the financial resources of the applicants:

• (a) Before me the applicants were represented by solicitors and counsel. It is, of course, possible that all their representation was provided on a pro bono basis, the applicants all being impecunious and not having access to financial resources to meet an adverse costs order. That would have been easy for them to prove.
• (b) However they did not prove those propositions. Instead, the only evidence on which they sought to rely in support of their contention as to their financial resources was a solicitor's affidavit in which the solicitor deposed to being informed by each of the applicants that they had no relevant resources.
• (c) I uphold the objection taken to the admissibility of this affidavit. First, the affidavit is hearsay and could not have been given orally: r 430(1). Second, because an order as to costs made as part of the final orders determining a proceeding is final relief (see Van Rief v ACP Publishing Pty Ltd [2003] QCA 37; [2004] 1 Qd R 194 at [39]) the exception set out in r 430(2) permitting affidavits on information and belief does not apply. Third, even if it did, the solicitor did not even depose to believing that which he recorded he was informed, so it was not an affidavit deposing to facts on information and belief.
• (d) I agree with the submission from Adani that the evidence before me does not justify an inference that the applicants do not have access to financial resources to meet an adverse costs order.

[18] As to the whether the proceeding involves an issue that affects or may affect the public interest in addition to any personal right or interest of the applicants:

• (a) My reasons for judgment on the merits of the application:
  • (i) record (at [2]) that the applicants were some (but not all) of the persons comprising the registered applicant in respect of a native title determination application lodged pursuant to the Native Title Act 1993 (Cth); and
  • (ii) record (at [27]-[37]) the course of relevant events in relation to the native title determination application, including that the first applicant had made a failed application seeking to set aside the determination of the National Native Title Tribunal in relation to the application and that an appeal had been lodged from the decision rejecting the application.
• (b) The decision rejecting the first applicant's application was that of Reeves J in Burragubba v State of Queensland [2016] FCA 984. The applicants' submissions on the merits of their application drew my attention to his Honour's reasons. It is apparent from his Honour's reasons for judgment (see at [31]-[43]) that at least before his Honour, there was evidence suggesting that the first applicant did not speak for the native title claimants as a whole.
• (c) The evidence before me touching upon the subject was contained in the affidavit of Mr Burragubba. Although he deposed to being one of the elders of the group which comprised the native title claimants, and explained the impact on the decision on the native title rights which he claimed, he did not depose to being authorized to speak on behalf of all the native title claimants for the purposes of the application before me. It would not be appropriate to evaluate the evidence touching upon this issue as supporting the inference that all the native title claimants supported the applicants' stance in the application before me.
• (d) I agree with the submission from the Minister and Adani that there is no evidentiary basis to justify the inference that the applicants were actually motivated to ensure the proper administration of the Mineral Resources Act as opposed to their own personal interests (or, at best, their own personal interests and those of any other members of the native title claimants who supported their application).
• (e) That said, the proceeding did affect the public interest, to the limited extent that the public is interested in ensuring that the statutory obligations of the Minister are fulfilled according to a proper appreciation of the law. And it is true that my decision did express a particular view[1] on the extent of the application of the principles of natural justice to the Minister's determination of an application for a mining lease under the , in circumstances where an applicant had not availed itself of the objection processes under that Act. The public could be said to be interested in rulings on points of law of general application.

[19] As to whether the proceeding disclosed a reasonable basis for the review application, the respondents conceded that the grounds advanced by the amended application before me were arguable, in the sense that they were neither frivolous nor vexations. However, they ultimately failed.

[20] In its submissions, Adani drew my attention to the fact that before the application was determined against them the applicants were content to take the position, in effect, that costs would follow the event. Yet now, having failed, they take a different position because they make a belated application under s 49(1) and make no attempt to explain why that application was not made earlier, or why the order was not sought as part of the originating application. Adani submitted that that was a factor which should be taken into account against the application. I would not exclude the possibility that cases might arise in which that consideration could be relevant. In the present case, however, I would not give that consideration any weight, because there is no reason to believe that the respondents have been prejudiced by the apparent change of position.

[21] None of the considerations identified by the applicants persuade me that the appropriate exercise of the costs discretion is to make the order they seek. To the contrary, it seems to me that the successful respondents ought to be paid their costs by the unsuccessful applicants.

[22] I order that:

• (a) the applicants must pay the first respondent's costs of the proceeding; and
• (b) the applicants must pay the second respondent's costs of the proceeding.

[1] Which was overruled on appeal: see Burragubba v Minister for Natural Resources and Mines [2017] QCA 179 at [56].