Burragubba v State of Queensland

1. the appellant pay the first and second respondents' costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

history 1 On 25 August 2017 the Court dismissed an appeal in this matter, initially ordering that the appellant pay the respondents' costs of the appeal. The respondents were Adani Mining Pty Ltd ("Adani"), the State of Queensland ("Queensland") and the National Native Title Tribunal (the "NNTT"). The NNTT submitted to any order that the Court might make in the proceeding. On the same day, the Court, similarly constituted, gave judgment in appeal no QUD 726 of 2016 (the "ACF appeal"), dismissing that appeal and ordering that the parties provide written submissions as to costs. The appellant in those proceedings was Australian Conservation Foundation Incorporated ("ACF"). The respondents were the Minister for the Environment and Energy (the "Minister") and Adani. The Court subsequently ordered that the appellant pay each respondent's costs of the appeal. See Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (No 2) [2017] FCAFC 216. 2 Following the publication of the judgment in the ACF appeal on 25 August 2017, the appellant applied for an order vacating the order as to costs in this appeal, and directions as to the filing of submissions as to costs. Dowsett J made such orders. The Court now deals with the submissions which were subsequently filed. 3 At first instance, these proceedings involved judicial review of a decision of the NNTT pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). At first instance the appellant advanced numerous grounds for review. The primary Judge dismissed all grounds. On appeal, the appellant advanced 10 grounds of appeal. In the Court's reasons, we identified grounds 1-6 as dealing with the proper construction and application of s 5 of the ADJR Act, and grounds 7-10 as dealing with the appellant's entitlement to such judicial review, an issue which depended upon the proper construction of the Native Title Act 1993 (Cth) (the "Native Title Act"). The appeal failed on all grounds. 4 Queensland and Adani had filed notices of contention, asserting that the appellant was not a person aggrieved for the purposes of the ADJR Act, and so could not seek judicial review under s 5 of that legislation. Concerning this point, this Court said, at [171]-[173]: 171 The term "person aggrieved" in the ADJR Act includes a person whose interests are adversely affected by the decision (s 3(4) of the ADJR Act). In Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394 per Hayne and Bell JJ (at [61]) their Honours noted "interests" may be broader than legal interests, such as economic interests (footnotes omitted): The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (beyond (84)) its effect on the public at large. Here, the effect was said to be economic. 172 Argos also establishes that regard must be had: to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant [may] otherwise [be] a person aggrieved. 173 In this instance the appellant brought the proceedings in his own capacity, not as a "native title party" as that term is properly construed. The decision of the Tribunal, according to the State, would have no legal and practical effect on any interests of the appellant. It would only ensure that the grants of the mining leases are not invalid to the extent that they would "affect" or be inconsistent with native title (to use the terminology of s 227 of the Native Title Act): see Lardil Peoples v Queensland (2001) 108 FCR 453. But the appellant has not established what native title rights and interests he holds, nor has he established how those rights may be affected. 5 Although the Court was inclined to doubt the correctness of the submissions by Queensland and Adani concerning the appellant's standing, we considered that it was unnecessary that we resolve that question.