Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs

Federal Court of Australia|2014-02-26|Before: Kenny J

The applicant pay the first, fourth and fifth respondents' costs of the application, to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 864 of 2011

AND: MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

what this is about 1 On 3 February 2014, the Court ordered that the applicant's judicial review application, as amended, be dismissed. At the same time, the Court ordered that: On or before 17 February 2014, the parties file a minute of order as to costs (if agreed) or brief written submissions in respect of costs, failing which the applicant pay the first, fourth and fifth respondents' costs of the application. It will be apparent from this order that, as stated in my reasons for judgment (at [174]) also delivered on 3 February 2014, as at that date, I was provisionally of the view that, in the absence of agreement, the applicant should pay the costs of the application of the first, fourth and fifth respondents. 2 These respondents have not been able to reach agreement with the applicant on the question of costs and, accordingly, the relevant parties have now filed written submissions in support of their respective positions. The first respondent ('the Minister') seeks an order that the applicant pay the Minister's costs of the application. The fourth and fifth respondents also seek a costs order in their favour. 3 The applicant opposes the making of these orders, first, on the basis that there are special circumstances that "justify the Court exercising its discretion not to order the Applicant to pay the First, Fourth and Fifth Respondent's costs of the Proceeding". Alternatively, the applicant submitted that, if costs were to be awarded to the Minister, then "it should only be a percentage of its [sic] costs". The applicant did not propose any alternative with respect to the fourth and fifth respondents; rather, the applicant advanced additional reasons for denying them the benefit of a costs order. 4 The background to this proceeding appears in the reasons for judgment delivered with respect to the judicial review application, as amended: see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25 ("Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs"). The position with respect to the costs of the remaining respondents is not in dispute and is also the subject of explanation in Gondarra v Minister for Families, Housing Community Services and Indigenous Affairs.

General Principles 5 Under s 43(2) of the Federal Court of Australia Act 1976 (Cth), the award of costs is at the discretion of the Court. In Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 ("Ruddock v Vadarlis (No 2)") at 234 [9], Black CJ and French J observed that: Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case. 6 Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) at 234 [11]; Oshlack v Richmond River Council (1998) 193 CLR 72 ("Oshlack v Richmond River Council") at 97 [67] (McHugh J) and 120-122 [134] (Kirby J); Seven Network Ltd v News Ltd (2009) 182 FCR 160 at 403 [1100]-[1101] (Dowsett and Lander JJ); and State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7]. The Minister and associated parties, the fourth and fifth respondents, have been entirely successful in the result.

No circumstances justifying departure from usual rule 7 There is, of course, no hard and fast rule as to the disposition of costs. For the reasons stated below, however, there are no special or other circumstances justifying a departure from the usual rule as to costs in this case. 8 The applicant submitted that there were various factors that meant that "the proceeding was in the public interest", including that: (a) the applicant did not directly stand to make any personal, private or financial gain from the proceeding and his success would have benefitted a significant group of people; (b) there was widespread public interest in the litigation and its outcome; and (c) the applicant's case was arguable. 9 Other factors, namely, that the applicant was represented pro-bono and that under s 43 the Court might award only a percentage of costs to the Minister (instead of the total costs), were also said by the applicant to justify a departure from the ordinary course. 10 First, it is important to note here that the authorities establish that there is currently no category of "public interest" litigation, in which some different rule to that which ordinarily applies is normally adopted. 11 Second, the fact that a proceeding was brought otherwise than for the applicant's personal or financial gain does not diminish the general applicability of the rule that costs generally follow the event, although such a consideration may be relevant to an exercise of discretion that a different order is appropriate in the circumstances of the particular case: see, for example, Oshlack v Richmond River Council at 97 [67] (McHugh J) and 120-122 [134] (Kirby J); Ruddock v Vadarlis (No 2) at 236 [14], 237 [18]; and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91 at 95 [15]. Reference may be made in this regard to the comments of Kirby J in Oshlack v Richmond River Council at 122-123 [134], that: A particular approach to a party which has ventured upon litigation ostensibly in the public interest is not adopted to reward that party's subjective motivation at the cost of another public or private person. As Cole JA pointed out in the Court of Appeal, litigation necessarily engenders cost. The purpose of the jurisdiction conferred to award costs is to permit the fair allocation of the costs which the parties have necessarily incurred. Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation. At least this is so unless such an immunity is conferred by Parliament. (Citations omitted) 12 Third, in the present case, none of the other factors to which the applicant referred is sufficient, separately or in combination, to mean that the litigation enters the class of "public interest litigation" as that expression was used in Oshlack v Richmond River Council (e.g., at 84 [30] (Gaudron and Gummow JJ)) so as to justify a departure from the usual rule as to costs: see further Oshlack v Richmond River Council at 90-91 [46]-[49]; 106-107 [90]-[91]. The applicant's assertion that "there was widespread public interest in the litigation and its outcome", even if accepted, does not mean that this was "public interest litigation" in the relevant sense. The "public interest" to which the applicant referred was synonymous with "public attention": that a matter attracts public attention does not mean that it therefore involves consideration of a significant and far-reaching point of principle of the kind that generally distinguishes "public interest litigation": contrast Ruddock v Vadarlis (No 2) at 242 [29] and Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 ("Wilderness Society"). In the latter case, the Full Court characterised the central issue as one of critical importance to the Minister in performing responsibilities for the administration of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): see Wilderness Society at [8]. As a consequence, the Court limited the recovery of the Minister's costs (as a successful appellant) to 70%. The usual rule as to costs has been applied in many 'arguable' cases, including those attracting a degree of public attention: in this particular case these factors do not weigh heavily in favour of the applicant. 13 Further, the fact that the applicant is represented on a pro bono basis is not a factor that in and of itself should deprive the successful parties of their costs: see, for example, statements of Lindgren J, with whom Beaumont and Lehane JJ agreed, in Microsoft Corporation v Marks (No 2) (1996) 69 FCR 144 at 146. 14 There must be something more than was present in this case to justify a departure from the usual rule. Regrettably for the applicant, this is not a case of a kind for which Parliament has conferred some costs immunity or made some other special provision that might assist in diminishing the costs burden that the usual rule entails. 15 I am unable to discern any feature connected with the case that would justify the Court in depriving the Minister of the whole or of a proportion of the recoverable party and party costs.

Particular arguments regarding the fourth and fifth respondents 16 For these reasons and the reasons stated hereafter, I also consider that an order for party and party costs should be made in favour of the fourth and fifth respondents. The applicant made some separate submissions concerning their position, which were designed to prevent this outcome. 17 Referring to Wilderness Society at [12]-[13] and Lansen v Minister for the Environment and Heritage (No 3) 2008 FCA 1367 ("Lansen"), the applicant argued, with respect to these respondents, that they "played a larger than necessary role and thereby increased both the costs and time of the [p]roceeding". 18 The applicant also submitted that: The award of costs against [him], in circumstances where the Fourth Respondent owes a statutory obligation to protect the interests of all of those with a relevant interest, may be tantamount to discounting the statutory obligation imposed on the Fourth Respondent. In such circumstances, an alternative order is that no order should be made in favour of the Fourth Respondent. 19 Whilst it is true that in Wilderness Society the Full Court limited the costs recovered by Gunns (as a successful appellant) to 40% of its party and party costs (i.e. a lesser proportion than that recovered by the Minister), that case was relevantly different to this case. As noted above, the Court recognised that the appeal had a public interest significance. The Court held that Gunns' private interest in its proposal to construct a pulp mill meant that it was a proper party, but that it had overplayed its hand because none of its conduct was in issue and it had no reason to believe that the Minister "would not deploy appropriate legal resources to defend the appeal". In this context, the Court observed (at [12]-[13]) that: It was not apparent to the Court that Gunns' legal representatives saw their role as being principally to supplement, assuming it to be necessary, the written and oral submissions of the Minister. Rather, Gunns sought to participate on equal terms with the Minister in the defence of the appeal. This was illustrated by, but not limited to, Gunns substantial written submissions on the issue of whether the Minister had acted for an improper purpose. … Having regard to the fact that it was the Minister who was the more appropriate contradictor on this appeal, we consider that Gunns played a larger role in the appeal than was necessary. The extent to which the costs recoverable by Gunns should for this reason be limited is a matter of judgment or impression; it is not susceptible to precise calculation. In all the circumstances we have concluded that it is appropriate to limit the costs recoverable by Gunns to 40% of its party/party costs, including reserved costs, on the appeal. 20 Mansfield J considered a similar argument concerning a 'private interest' party in Lansen at [47]-[51], which his Honour considered had a similar public interest significance to Wilderness Society, but was not ultimately "critical of the role played by the [party] in [that] proceeding": [51]. 21 In this case, I do not consider that the fourth and fifth respondents relevantly overplayed their combined "hand". The fourth and fifth respondents were joined on the basis that they ought to have been joined by the applicant at the outset of the proceeding, as necessary parties: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1206 at [13]-[14]. Both respondents had a direct interest in the relief sought by the applicant in relation to the grant of the Lease and the entry into the Agreement, as discussed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs. 22 The way in which these respondents conducted the litigation did not unduly increase costs or unnecessarily prolong the hearing. Rather, so it seemed to me, they complied with my order that, to the extent practicable, their submissions not duplicate that of another respondent. Relevantly, it did not seem to me that, in protecting their separate and distinct interests, they engaged in unnecessary duplication: that is, in advancing their submissions and material, they did not overstep the permissible line: cf Lansen at [51]. Further, in the circumstances of the case, retaining senior and junior counsel was not 'overkill'. In this regard, it should be borne in mind that the applicant's arguments in this litigation changed over time. Thus, for example, it was not until very shortly before the hearing that the applicant determined not to press his allegations as to the traditional ownership of the land - being arguments of direct concern to the fourth and fifth respondents. The applicant's late change of tack meant that it became unnecessary to rely on evidence that had been prepared and filed in this connection. As noted in earlier reasons, the applicant's arguments were not consistent, whether considered prior to or during the hearing; and did not marry up to the review grounds particularly closely: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs at [22]. It was in this context that the respondents' contribution to those aspects of the applicant's arguments that lay most particularly within their statutory responsibilities and expertise falls to be assessed as a useful one. 23 I reject the applicant's contention that an award of costs in favour of the fourth respondent would trespass on its statutory duty, as stated the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This argument, if accepted, would "effectively immunise" the applicant "from the cost consequences of unsuccessful litigation", as submitted. Section 23(1) of that Act states the functions of a Land Council, including, in paragraph (b), "to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council". Section 23(1)(b) does not relate to the disposition of costs in a proceeding such as this and does not provide any justification to depart in this case from the usual costs rule.

disposition 24 For the foregoing reasons, I would order that the applicant should pay the first, fourth and fifth respondents' costs of the application, to be taxed in default of agreement. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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