Edelman J
In this case, the Court ordered that Mr Adrian Burragubba pay the costs Adani Mining had ‘thrown away’ as a result of Mr Burragubba's application to amend his originating application for judicial review. Mr Burragubba’s proposed amendments abandoned significant grounds of review in an application for review of a National Native Title Tribunal decision.
Issue
The Court had to consider the extent to which the court's discretion should be affected by considerations that are not in the text but fall within the spirit of s 85A of the Native Title Act 1993 (Cth) (NTA).
Section 85A requires that, unless the Court orders otherwise, each party must bear their own costs. Mr Burragubba submitted that no order as to costs should be made because:
the ‘spirit’ of s 85A of the NTA applies to proceedings under the Administrative Decisions Judicial (Review Act) 1977 (Cth) (ADJR Act) that are concerned with construction of the NTA and it is relevant to the exercise of the Court’s jurisdiction to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth)
he had acted reasonably, seeking to make the amendments five weeks after first engaging representation; and
s 11(6) of the ADJR Act does not limit an applicant to the grounds of review included in his originating application.
The Court accepted Mr Burragubba’s second submission. It also stated at [10] that the third factor, even if relevant, had little significance and would not be examined. However, the first submission required a more detailed examination.
The 'equity' of s 85A of the NTA
Justice Edelman reviewed two cases where a principle, the ‘equity or spirit of the statute’ was applied and it was held that s 85A of the NTA constrains the exercise of the court's discretion in some judicial review cases. Edelman J observed at [25] both cases were applications under the ADJR Act involving construction of the NTA. He stated at [27] that there were ‘strong reasons’ why the scope of s 85A’s ‘spirit’ should be limited to these circumstances. At [31] Edelman J concluded that even if s 85A was applied, to do so in the circumstances of the costs of the amendment to a judicial review application including amendments to both the factual claims and concerning a denial of procedural fairness would ‘be beyond any legitimate application’.
Justice Edelman noted at [32] that if the amendments were merely a reformulation of the original application as Mr Burragubba claimed, the costs he would have to pay would not be significant.