Reeves J
In this matter, Reeves J dismissed an application to vary an order that the applicant, Mr Burragubba, pay the costs and reserved costs of the second respondent, Adani Mining Pty Ltd (Adani). The costs order followed the dismissal of Mr Burragubba’s application for judicial review of a National Native Title Tribunal (NNTT) decision in Burragubba v State of Queensland [2016] FCA 984 (Burragubba #1).
Application to vary costs order
The present matter relates to Mr Burragubba’s appeal of the costs order. Mr Burragubba submitted that there were special circumstances indicating that the usual rule that each party bears their own costs should not apply.
Mr Burragubba submitted that although his application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) it involved the first judicial consideration of certain provisions of the Native Title Act 1993 (Cth) (NTA) and the “spirit” of s 85A of the NTA should therefore be taken into account in the exercise of the Court’s discretion to award costs.
This argument had been considered and rejected at an earlier stage in the proceedings: Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 and rejected this time because the NTA issues were peripheral to the central 'fraud' issue raised and the NTA construction arguments were not sound or reasonably argued.
Reeves J accepted Adani’s submission that Mr Burragubba’s conduct of the litigation was unreasonable with several amendments to the application, resulting in an adjournment and increased costs to the respondent.
Reeves J also accepted Adani’s submission that the personal nature of Mr Burragubba’s claim was potentially contrary to the interests of the Wangan and Jagalingou people. On this point, Reeves J reiterated the position his Honour had taken in Burragubba #1 at [292]-[294]. His Honour ruled that if individuals comprising a native title party were able to act individually in discharging their roles as native title holders, then the NTA would become unworkable due to the difficulty reaching agreements within and between groups.
Finally, Reeves J rejected Mr Burragubba’s argument that he was acting in the public interest as the native title rights and interests concerned are quintessentially personal and private and can only be held by the members of the Wangan and Jagalingou native title claim group. His Honour considered that neither the applicant or the claim group could be characterised as a ‘section of the public’ in the sense described in Oshlack v Richmond River Council [1998] HCA 11 [48]-[49].