Williams v Minister for Environment & Heritage [2004] FCAFC 58 (19 March 2004)

APPEAL – whether lacking utility – whether temporary restraining order should have been made, pending reconsideration of Minister’s decision – Minister’s decision now reconsidered – occasion for making such an order now past

ADMINISTRATIVE LAW – Aboriginal heritage protection – refusal of Minister to make protection order – Minister’s decision quashed and matter remitted to Minister for reconsideration – whether power for Court to make order restraining mining activity on land pending reconsideration

COSTS – indemnity costs – appeal lacking utility – whether appeal in the public interest – whether costs order should be made against lay advocate appearing by leave of the Court – whether appeal had no prospect of success when commenced

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, 16
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 9
Federal Court of Australia Act 1976 (Cth) ss 21, 24

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 discussed
Williams v Minister for the Environment & Heritage [2003] FCA 535 cited
Williams v Minister for the Environment & Heritage [2003] FCA 627 cited
In re Judiciary & Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 applied
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (2002) 209 CLR 372 applied
Oshlack v Richmond River Council [1998] HCA 11 (1998) 193 CLR 72 distinguished
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 (1998) 195 CLR 1 referred to
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 referred to
Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 referred to
Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224 referred to
Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396 referred to
Preston v Preston [1982] 1 All ER 41 referred to
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Others (1988) 81 ALR 397 referred to

NEVILLE WILLIAMS v MINISTER FOR THE ENVIRONMENT AND HERITAGE AND BARRICK AUSTRALIA LTD (ACN 007 857 598)
N 750 of 2003

GRAY, TAMBERLIN AND LANDER JJ
19 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 of 2003

BETWEEN:	NEVILLE WILLIAMS APPELLANT
AND:	MINISTER FOR THE ENVIRONMENT AND HERITAGE FIRST RESPONDENT BARRICK AUSTRALIA LTD (ACN 007 857 598) SECOND RESPONDENT
JUDGES:	GRAY, TAMBERLIN AND LANDER JJ
DATE OF ORDER:	19 MARCH 2004
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 of 2003

BETWEEN:	NEVILLE WILLIAMS APPELLANT
AND:	MINISTER FOR THE ENVIRONMENT AND HERITAGE FIRST RESPONDENT BARRICK AUSTRALIA LTD (ACN 007 857 598) SECOND RESPONDENT

JUDGES:	GRAY, TAMBERLIN AND LANDER JJ
DATE:	19 MARCH 2004
PLACE:	SYDNEY

1 This appeal from a judgment of a single judge of the Court was intended to raise the issue of the width of the Court’s power pursuant to s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). By the time of the hearing of the appeal, there was no longer any occasion for the exercise of that power in relation to any dispute between the parties, if the power had been exercisable in the manner sought by the appellant. The appeal therefore lacks utility and must be dismissed. The dismissal of the appeal for that reason gives rise to several issues about costs, which it is necessary to resolve.

2 The appellant, Neville Williams, is an Aboriginal person. He is of the Wiradjuri people, whose traditional country in New South Wales includes Lake Cowal. He endeavours to perform the role of a custodian of the traditional values of that country, and particularly of ancient artefacts lying on or below the surface of the land at or in the vicinity of Lake Cowal.

3 The first respondent, the Minister for the Environment and Heritage, (‘the Minister’) is the Minister responsible for administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the ATSIHP Act’). Because the issues in the appeal were in contention between the appellant and Barrick, the first respondent entered a formal appearance, submitting to any order the Court might make, and did not appear on the hearing of the appeal.

4 The second respondent, Barrick Australia Limited (‘Barrick’) is a corporation, holding a mining lease from the New South Wales Government with respect to an area of land, specified in the lease, (‘the subject land’) at Lake Cowal. Pursuant to the terms of the mining lease, Barrick has begun to carry out works on the subject land for the purpose of conducting mining operations. The appellant is concerned about the disturbance to and destruction or damage of Aboriginal artefacts on or below the surface of the subject land as a consequence of those works, and of possible future works by Barrick. He has made a number of attempts, by various legal proceedings, to prevent Barrick from carrying out works on the subject land, and to attempt to preserve the Aboriginal artefacts on the subject land in the condition they are in and in the places where they lie.

5 One further person needs to be identified. He is Alan Oshlack. Mr Oshlack is an advocate from the Indigenous Justice Advocacy Network (‘IJAN’), which is a non-profit organisation, dedicated to providing legal services, advocacy, consultation and advice to Aboriginal traditional owners and elders, mainly in New South Wales. Mr Oshlack is not a legal practitioner, but has some knowledge of the conduct of legal proceedings and an interest in assisting in the preservation of Aboriginal artefacts. By leave of the learned primary judge, Mr Oshlack appeared as advocate for the appellant in the proceeding at first instance. When the appeal was called over before Sackville J on 30 July 2003, Mr Oshlack raised the question whether he might also appear for the appellant on the hearing of the appeal. Sackville J directed that he file written submissions, seeking leave to appear on the appeal. Mr Oshlack did so on 28 November 2003. Barrick did not oppose the grant of leave to Mr Oshlack to appear for the appellant. The Court gave such leave. Mr Oshlack made submissions which were of assistance to the Court.

6 Section 9 of the ATSIHP Act provides a power to the Minister to make emergency declarations in relation to areas. It provides:

7 On 17 October 2002, the appellant made an application to the Minister pursuant to this section, in relation to the subject land. On 9 December 2002, the Minister decided not to make a declaration. The appellant sought a statement of the Minister’s reasons for decision, pursuant to s 13 of the ADJR Act. The statement of reasons was provided on 6 February 2003.

8 On 6 March 2003, the appellant applied to the Court for judicial review of the Minister’s decision, pursuant to the ADJR Act. At that stage, the Minister was the only respondent to the proceeding. The hearing of the proceeding commenced before the primary judge on 21 May 2003. In the course of Mr Oshlack’s submissions on that morning, Mr Oshlack submitted that, if the appellant succeeded in setting aside the Minister’s decision, the Court should make an order pursuant to s 16(1)(d) of the ADJR Act, restraining Barrick from carrying out works on the subject land. Section 16(1) of the ADJR Act provides:

9 The primary judge drew attention to the fact that Barrick was not then a party, so could not be the subject of any order directing it to refrain from doing anything. Mr Oshlack then sought an order on behalf of the appellant, joining Barrick as a respondent to that proceeding. His Honour suggested that a solicitor acting for Barrick in other proceedings should be notified that an application would be made to join Barrick later that day, and that Barrick be invited to be represented when that application was made. As a consequence, in the course of the afternoon, a legal representative appeared for Barrick. The primary judge granted leave to the appellant to amend his application. The leave was in terms of joining as respondents two companies with names similar to the name of Barrick, but the position was later clarified and Barrick became the second respondent to the proceeding at first instance. An amended application was filed in Court. That amended application contained a prayer for relief in the following terms:

10 The primary judge reserved his judgment. He delivered it on 30 May 2003. He pronounced orders, setting aside the decision of the Minister to refuse to make the declaration sought by the appellant and remitting the matter to the Minister for consideration and determination according to law. His Honour also pronounced an order that, pending further determination by the Minister of the appellant’s application for a declaration, or further order of the Court, Barrick be restrained from carrying out any work on the subject land, with the exception of the continuation of an exploratory drilling program that was being carried out at the date of the hearing and identification and removal to protective storage of artefacts found on the subject land.

11 Following the pronouncement of those orders, counsel then appearing for Barrick made a submission to the primary judge that the Court had no power to make the restraining order against Barrick. Counsel referred his Honour to Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, to which his Honour had not previously been referred. After hearing submissions, his Honour pronounced ex tempore reasons for judgment, additional to those he had published in writing, in which he accepted that he did not have power to make the order concerned. He then revoked the order. He made an additional order directing the Minister to complete his determination of the remitted application, and notify his decision to the other parties to the proceeding, by not later than 13 June 2003. Both the written, and the edited versions of the ex tempore, reasons for judgment, together with minutes of orders reflecting those finally made by the primary judge were published as Williams v Minister for the Environment & Heritage [2003] FCA 535.

12 On the same day, 30 May 2003, the appellant filed his notice of appeal in this proceeding. He also filed a notice of motion and a supporting affidavit, seeking an urgent interlocutory order restraining Barrick from carrying out works on the subject land. The basis of the application was to preserve the subject matter of the appeal. Another judge of the Court heard the application for an interlocutory order on 2 and 3 June 2003 and delivered judgment on 3 June. See Williams v Minister for the Environment & Heritage [2003] FCA 627. The motion was dismissed with costs. In his reasons for judgment, the learned judge said at [47] that the appeal ‘does not have any prospects of success’.

13 On 11 June 2003, the Minister made a further decision in relation to the application for a declaration under s 9 of the ATSIHP Act. He again decided not to make such a declaration. He provided a statement of his reasons on 28 July 2003. In the course of the hearing of the appeal, the Court was told that no further proceeding has been commenced with respect to that decision, but that the appellant has another application (of a kind not detailed to the Court) pursuant to the ATSIHP Act, currently under consideration by the Minister.

14 By the notice of appeal, the appellant appealed from ‘the whole of the judgment of Wilcox J in refusing to grant interlocutory relief given on 30 May 2003.’ The grounds expressed were that the decision that the Court had no power to grant ‘interim relief to the Applicant’ pursuant to s 16(1)(d) of the ADJR Act against Barrick was wrong at law, and that the primary judge erred in applying Johns and concluding that he had no power to grant relief against Barrick. The relief sought was in the following terms:

15 By s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’), jurisdiction is conferred on the Court to hear and determine appeals from judgments of the Court constituted by a single judge. The word ‘judgment’ is defined in s 4 to mean ‘a judgment, decree or order, whether final or interlocutory, or a sentence’. It is plain that an appeal lies only from the ‘judgment’ of the primary judge in the strict sense, ie the order that his Honour made or declined to make. There is no right of appeal from reasons for judgment, as distinct from the orders pronounced by the Court. In the present case, although the terms of the notice of appeal do not make it clear, the appeal is from the order of the primary judge on 30 May 2003, whereby his Honour revoked the order that he had pronounced against Barrick earlier that day. Unfortunately, the formal record does not reflect what occurred on that day. The orders originally pronounced by his Honour have not been entered. Nor has there been any entry of the order revoking the order against Barrick. Rather, a single order has been entered, reflecting the final position. The primary judge reissued his reasons for judgment, with the ex tempore reasons for judgment included as an addendum, and with minutes of orders reflecting that final position. It is necessary to go to his Honour’s reasons to ascertain that an order was pronounced against Barrick and that a second order was pronounced, revoking that first order. The final version contains no order dismissing the application for any order against Barrick. If it were possible to proceed with the appeal, it would probably have been necessary to invite the parties to consider whether orders should be entered reflecting the totality of the orders pronounced. For present purposes, however, it may be taken that the appellant has appealed from the order revoking the order made earlier against Barrick. In effect, the appeal is from the dismissal of the appellant’s application for an order against Barrick.

16 Once it is understood that an appeal must be from a ‘judgment’ in the strict sense, it is apparent that the present appeal lacks utility. Even if this Full Court were to hold that the primary judge was wrong in relation to the absence of power under s 16(1)(d) of the ADJR Act to make an order against Barrick in the circumstances, it would be necessary to consider the nature of the order that his Honour had pronounced, and the nature of any order that he could have made. The order actually pronounced was expressed to operate for no longer than the Minister should take to make another decision about the appellant’s application for a declaration under s 9 of the ATSIHP Act. This temporal limitation accorded with the appellant’s wish, expressed in the amended application, for ‘an interlocutory order’. As counsel for Barrick submitted at the hearing of the appeal, the order sought could only have been ‘interlocutory’ in two possible senses. It could have been intended to seek an order restraining Barrick from carrying out works on the subject land pending the judgment of the Court, or pending a further decision by the Minister on the application for a declaration pursuant to s 9 of the ATSIHP Act. At no stage in the proceeding at first instance did the appellant seek an order restraining Barrick from doing anything on a permanent basis. The primary judge plainly did not intend to grant a permanent order. It is difficult to envisage circumstances in which one might have been granted when, if the Minister’s decision were to be set aside, the consequence would be that the matter was remitted to the Minister for further decision.

17 Supposing that this appeal were to be allowed, it could lead only to two possible outcomes. One outcome would be that the matter be remitted to the primary judge to consider whether to make an order against Barrick. The other possibility is that the Full Court would itself engage in the task of considering whether some order against Barrick should be made. In its terms, the appellant’s notice of appeal sought an order of the first kind. Plainly, an order of either kind could not be made. The occasion for restraining Barrick from doing anything, pending the further decision of the Minister on the appellant’s application for a declaration, has long past. For the Court now to restrain Barrick from doing anything in the period between 30 May 2003, when the judgment at first instance was given, and 11 June 2003 when the Minister gave his further decision, would be the clearest exercise in futility. Nor would it be possible for the Court to set aside the revocation order, for the purpose of allowing the original order pronounced by the primary judge against Barrick to spring into life after the event. That would have the effect of exposing Barrick retrospectively to liability for contempt of court for acts that were lawful when they were done because there was then no order of the Court restraining them. It would be unthinkable that the Court would make such an order.

18 It is therefore impossible for the appellant to obtain any relief in this appeal. Mr Oshlack suggested that the Court might make a declaration, although none is sought in the notice of appeal. There is no doubt that, pursuant to s 21 of the Federal Court Act, the Court has power to make a binding declaration of right, whether or not any consequential relief is or could be claimed, in relation to a matter in which it has original jurisdiction. Although the current proceeding is an exercise of the Court’s appellate jurisdiction, the appeal is in relation to a matter in which the Court has original jurisdiction, pursuant to the ADJR Act. The problem is that such a declaration is as to the rights of the parties to a proceeding. It is not merely as to the extent of the powers of the Court, or the proper construction of a statutory provision. A declaration as to the meaning and effect of legislation, divorced from any justiciable controversy between parties grounded upon a factual situation, would not be an exercise of the judicial power of the Commonwealth. It would amount to an advisory opinion. There would not be a ‘matter’ for the purposes of ch III of the Constitution, which is the source of the judicial power of the Commonwealth. See generally In re Judiciary & Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (2002) 209 CLR 372. The Court could not therefore make a declaration of right.

19 Mr Oshlack endeavoured to emphasise the importance of the question of the extent of the powers of the Court pursuant to s 16(1)(d) of the ADJR Act. It cannot be doubted that that question is of general public importance. It may also be of specific importance to the appellant, if he should again be involved in proceedings similar to the proceeding at first instance. The importance of a question cannot be used to justify inviting the Court to give an advisory opinion. In effect, Mr Oshlack’s submission amounts to a contention that, because the appellant wishes to overcome the effect of the primary judge’s reasons for judgment as a precedent, he ought to be allowed to contest them before a Full Court. Dislike of reasons for judgment as a precedent cannot form the basis for a claim to have a judicial decision quashed on the ground of error. See McBain at [23] per Gleeson CJ.

20 I am therefore of the view that, because the time for which any order against Barrick could have been made by the primary judge has passed, this appeal has become one lacking in utility. It must therefore be dismissed.

21 The fact that the appeal is to be dismissed renders it unnecessary to consider Mr Oshlack’s application for an award of costs in favour of the appellant. Two issues remain for determination. The first is whether, as Mr Oshlack submitted, the Court should exercise its discretion against making an order that the appellant pay Barrick’s costs of the appeal because of the public interest nature of the appeal. The second is whether, if an order for costs is to be made against the appellant, it should be for, or include, costs on an indemnity basis, as sought by Barrick.

22 In relation to the first issue, Mr Oshlack referred to the principles discussed by the High Court of Australia in Oshlack v Richmond River Council [1998] HCA 11 (1998) 193 CLR 72. In that case, the court at first instance had refrained from making an order for costs against Mr Oshlack himself, when he was an unsuccessful applicant for an order enforcing a New South Wales statute designed for the protection of the environment. On appeal, the High Court, by majority, held that the refusal to make a costs order had been a proper exercise of the discretion. The considerations that had been expressed by the court at first instance as grounds for refusal to make the costs order are summarised at [20] in the judgment of Gaudron and Gummow JJ. They include a significant element absent from the present case, namely that Mr Oshlack’s pursuit of litigation in that case was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of an endangered species. He had nothing to gain from the litigation other than that worthy motive. At [134], the other member of the majority, Kirby J, referred to the unusually broad provisions as to standing to bring a proceeding that were present in the legislation in that case.

23 In the present case, it cannot be said that the appellant has brought this appeal entirely without self-interest. He seeks to vindicate his own stance as a custodian of his traditional country. At the very least, if he were to succeed in stopping Barrick from conducting works on the subject land, he would undoubtedly derive substantial peace of mind. The absence of the prospect of monetary gain is not to be equated with the presence of a motive confined to altruism. Further, although there is undoubtedly a significant public interest in the preservation of Aboriginal artefacts from damage or destruction, and from removal, s 9 of the ATSIHP Act does not provide for, and certainly does not encourage, any member of the public to bring a proceeding, as did the legislation considered in Oshlack. Section 9 of the ATSIHP Act confines standing to seek a declaration to Aboriginal people. The basis of the legislation is that Aboriginal people are likely to have a desire to protect something to which they have some attachment, and should be able to make application for its protection.

24 For these reasons, I am of the view that the present case does not fall within the principles discussed in Oshlack. The normal rule, that costs follow the event, should be applied. The appellant should be ordered to pay Barrick’s costs of the appeal.

25 It is therefore necessary to consider the second issue, that of indemnity costs. These were sought against the appellant, and against Mr Oshlack personally, on the basis of the lack of utility of the appeal, and on the basis of warnings to this effect in correspondence from Barrick’s solicitors to Mr Oshlack. The original application was for indemnity costs of the entire appeal.

26 At the time when the notice of appeal was filed, the appeal did not lack utility. If it had been heard and determined as a matter of urgency, before the Minister gave his second decision in relation to the appellant’s application for a declaration pursuant to s 9 of the ATSIHP Act, there would still have been a live question as to whether Barrick should have been restrained pending that decision.

27 In my view, the appeal was not without a prospect of success when it was commenced, providing it could have been heard as a matter of urgency. With great respect to the learned primary judge, and to the learned judge who dismissed the appellant’s application for an interlocutory order on 3 June 2003, I see considerable merit in the argument that the Court did have power to make the order against Barrick first pronounced and then revoked by the primary judge on 30 May 2003. In Johns, the High Court was dealing with a vastly different case from the present. Among other issues, it was considering whether there was power under s 16(1)(d) of the ADJR Act to restrain two news media outlets from further publishing material, already published, that had originally been given on a confidential basis as part of an investigation into the affairs of a group of companies. The documents concerned were transcripts of an examination. They had been used in a Royal Commission in a public hearing and the Royal Commission had made available copies to the media representatives. Not surprisingly, the High Court did not think it appropriate that a challenge under the ADJR Act to a decision in that chain of events should found an entitlement to an order against the news media organisations. The High Court was concerned to make it clear that, in such circumstances, unless the law relating to confidential communications could be extended as far as the media organisations, there should be no order made restraining further publication of the material. At 434, Brennan J said:

28 Only by taking that statement literally as defining the limits of the reach of s 16(1)(d), it is possible to arrive at a decision consistent with that arrived at by the primary judge, and by the judge who dealt with the interlocutory order, in the present case. There can be no doubt that Brennan J did not have in mind a case such as the present when he stated the proposition in such general terms. His Honour’s use of the word ‘merely’ indicates that his Honour’s primary concern was that the joinder as parties to the proceeding of the two media organisations, which had no connection otherwise with the decision challenged under the ADJR Act, should not be used to make the media organisations amenable to orders that could not have been made against them under the general law. A literal reading of his Honour’s statement is unwarranted.

29 When the appellant applied to the Minister for a declaration pursuant to s 9 of the ATSIHP Act, he had a right to have his application dealt with according to law. The primary judge held that he was not afforded that right. The correctness of that conclusion has been accepted, because there has been no appeal from it. To remedy the situation, it was necessary for the primary judge to remit the application to the Minister for proper consideration. It would be an extraordinary thing if the Court did not have power to preserve the subject matter of the application until the Minister’s further decision was made. The power of the Court to grant an interlocutory injunction to preserve the subject matter of litigation pending the determination of its own proceedings is undoubted. It is a very small step to say that, when making a final order under the ADJR Act, the Court has power to preserve the subject matter of a controversy, when it finds it necessary to remit that controversy for further consideration by a decision-maker who has not given proper consideration to it. Indeed, that is the very kind of situation to which the power in s 16(1)(d) appears to be directed.

30 If that power does not derive from s 16(1)(d) of the ADJR Act, then it must derive from s 23 of the Federal Court Act, the breadth of which was acknowledged by the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 (1998) 195 CLR 1 at [35] per Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ. There can be little doubt that an order of the kind that the primary judge pronounced on 30 May 2003 against Barrick was an order in aid of the exercise of the Court’s jurisdiction. It was directed to making effective the Court’s order requiring the Minister to exercise according to law the function of considering whether to make the declaration sought by the appellant pursuant to s 9 of the ATSIHP Act. The effect of the order was to prevent, to the extent the primary judge thought appropriate in the circumstances, damage of the kind feared by the appellant, during the period leading up to the proper consideration by the Minister of whether a declaration should be made. If the Minister had made his decision properly in the first place, so far as it appeared to the primary judge on 30 May 2003, there would have been no need for any further lapse of time, during which damage might occur.

31 It was therefore only after 11 June 2003, when the Minister did exercise his function properly, that the appeal ceased to have utility.

32 By letter dated 14 July 2003, Barrick’s solicitors referred to the judgment of 3 June 2003, dismissing the appellant’s motion for an interlocutory injunction against Barrick. They also referred to the Minister’s decision of 11 June 2003. They raised the contention that, because of that decision, there was no longer practical utility in the appeal. They requested that the appeal be discontinued before the call-over on 30 July 2003. If that were done, Barrick offered not to pursue any order for its costs of the appeal. If not, the letter threatened that an order for indemnity costs against both the appellant and Mr Oshlack personally would be sought.

33 For the purposes of dealing with this application, I am prepared to accept that the pursuit of a proceeding that cannot succeed, particularly when the futility of such pursuit has been drawn to the litigant’s attention, may be a proper reason for the exercise of the power to award indemnity costs against that litigant. In the present case, for the following reasons, I should not exercise that power.

34 It was not established that the appellant himself was made aware of the lack of utility of his appeal. The letter of 14 July 2003 was addressed to Mr Oshlack as agent for the applicant, at IJAN. It was sent by facsimile to Mr Oshlack himself. No attempt appears to have been made to send the letter, or any similar letter, to the appellant himself. The same can be said for a letter of 28 July 2003, repeating the warning that an order for indemnity costs would be sought. Counsel for Barrick attempted to rely on later correspondence, but the Court rejected this attempt on the ground that the correspondence appeared on its face to be without prejudice and did not contain an indication that Barrick intended to produce it to the Court at any stage.

35 Why Barrick’s solicitors communicated with Mr Oshlack at that stage is a matter of speculation. It may be that they were anxious not to inflame the tension that appears to have existed between Barrick and the appellant as a result of the appellant’s attempts to stop Barrick’s mining operations. It may have been simply because of an erroneous assumption that, because Mr Oshlack had been granted leave to appear on behalf of the appellant in the proceeding at first instance, Mr Oshlack was to be treated as if he were a solicitor on the record.

36 In the absence of evidence that the appellant himself had an appreciation of the lack of utility of the appeal, I should be reluctant to award indemnity costs against him. His desire to pursue whatever legal avenue might be open to him to prevent Barrick from desecration of his country, as the appellant no doubt sees Barrick’s operations, is understandable. The issue of disturbance of Aboriginal artefacts is an important one.

37 For these reasons, I should not make an order for indemnity costs against the appellant.

38 The Court granted Mr Oshlack leave to appear for the appellant on the appeal on the basis that it was more likely to be assisted by submissions from Mr Oshlack than by submissions from the appellant personally. Attempts to obtain legal representation for the appellant had been unsuccessful. It was in the interests of justice that the appellant’s case be put as well as it could be put in the absence of legal representation. Mr Oshlack was not an officious intermeddler. He made his services available to the appellant because of his (Mr Oshlack’s) involvement with IJAN. Mr Oshlack in fact made submissions that assisted the Court in the resolution of the appeal. It would be wrong to discourage people from making their services available in circumstances like those by being too ready to make orders for indemnity costs against them personally. For these reasons, I should not order indemnity costs against Mr Oshlack.

39 In my view, the appeal should be dismissed and an order for Barrick’s costs of the appeal should be made against the appellant. The application of Barrick for indemnity costs against the appellant and Mr Oshlack should be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 OF 2003

BETWEEN:	NEVILLE WILLIAMS APPELLANT
AND:	MINISTER FOR THE ENVIRONMENT AND HERITAGE FIRST RESPONDENT BARRICK AUSTRALIA LTD (ACN 007 857 598) SECOND RESPONDENT

JUDGES:	GRAY, TAMBERLIN AND LANDER JJ
DATE:	19 MARCH 2004
PLACE:	SYDNEY

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 OF 2003

BETWEEN:	NEVILLE WILLIAMS APPELLANT
AND:	MINISTER FOR ENVIRONMENT AND HERITAGE FIRST RESPONDENT BARRICK AUSTRALIA LTD SECOND RESPONDENT

JUDGES:	GRAY, TAMBERLIN AND LANDER JJ
DATE:	19 MARCH 2004
PLACE:	SYDNEY

41 This is an appeal from an order of a judge of this Court whereby his Honour revoked an order pursuant to s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) directed to the second respondent to refrain from carrying out any work except as permitted on land which was the subject of the appellant’s application.

42 The appellant had applied under the ADJR Act seeking a review of a decision of the Minister for the Environment and Heritage (‘the Minister’) whereby the Minister had decided not to make a declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) in relation to land at Lake Cowal in central New South Wales.

44 The appellant is an Aboriginal man who is a member of the Wiradjuri people and Chairman of the Mooka Traditional Owners Council which is an incorporated association that claims to represent the interests of the Wiradjuri people resident near Lake Cowal.

45 On 17 October 2002 the appellant applied to the Minister to make a declaration under s 9 of the Act in relation to land at Lake Cowal.

46 The area in respect of which he sought a declaration is the subject of a mining lease to the second respondent.

47 The appellant claims that the land is of particular significance to Aboriginals in accordance with Aboriginal tradition. Aboriginal tradition is defined in s 3 of the Act:

48 The appellant supported his application with reports from archaeologists and numerous statements of Aboriginal people, a number of his own affidavits and a very large body of general evidence.

49 He was motivated to bring the application to protect Aboriginal artefacts and the wider aspects of Aboriginal culture.

51 Pursuant to s 13 of the ADJR Act the appellant applied for a statement of the Minister’s reasons which was provided to him on 6 February 2003.

52 On 6 March 2003 the appellant filed an application for review of the Minister’s decision and at the hearing relied on two grounds for that application: failure to take into account a relevant consideration: s 5(2)(b); and Wednesbury unreasonableness: s 5(2)(g).

53 The second respondent was not named as a respondent in that application. However, during the hearing, the appellant sought to amend the application to join the second respondent and leave was given.

54 The appellant’s purpose in joining the second respondent was to obtain an order under s 16(1)(d) of the ADJR Act to enjoin the second respondent from carrying out any further mining activity on the land until the Minister had reconsidered the appellant’s application for a declaration over the land. The application to join the second respondent was in anticipation of the primary judge making an order setting aside the Minister’s decision and referring the matter back to the Minister for reconsideration.

55 Of course, if the primary judge had dismissed the appellant’s application under the ADJR Act then no order could have been made.

56 In fact, that was the decision of the primary judge. He declared that the decision of the Minister dated 9 December 2002 to refuse to make a declaration pursuant to s 9 of the Act was invalid. He set aside the Minister’s decision. He made an order that the application for a declaration pursuant to s 9 of the Act be remitted to the Minister for consideration and determination according to law.

57 When he delivered his reasons he also addressed the question as to whether or not he should make an order directed to the second respondent. In the reasons which he delivered he said:

59 Immediately after the primary judge made that order and the other orders to which I have referred, counsel for the second respondent submitted that the Court had no power to make that order. Counsel relied upon a decision of the High Court of Australia in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 to which the primary judge had not been referred during the hearing of the application.

60 The failure to bring that case to the judge’s attention at the hearing of the application is not meant as a criticism of counsel who then appeared for the second respondent. The second respondent was given very late notice of the appellant’s application to join it as a respondent to the ADJR application. Counsel attended on very short notice and without having had any time to prepare any argument. He would not have had time to consider the implications of the type of order made and the power to make that order under s 16(1)(d).

61 In any event, the primary Judge heard the second respondent’s submissions and decided that he was bound by the decision in Johns v Australia Securities Commission (supra) and did not have jurisdiction to make the order which he had pronounced under s 16(1)(d) of the ADJR Act.

62 He therefore revoked that order and in lieu thereof made an order directing that the Minister complete his determination of the remitted application by no later than Friday 13 June 2003. The effect of that order was to require the Minister to reconsider the appellant’s application under s 9 of the Act within 14 days.

63 It is from his Honour’s order revoking the order made on 30 May 2003 that this appeal is brought. The appellant lodged this appeal on the same day. When the appeal was lodged it had some utility. If the appeal had been heard immediately and decided in favour of the appellant, the Full Court could have set aside the order revoking the order of 30 May. That would have meant that the previous order would have stood at least until the Minister reconsidered the appellant’s application.

64 However on the same day the appellant instead filed a Notice of Motion seeking an interlocutory injunction restraining the second defendant in the terms of paragraph 3 of the Orders sought on this appeal: (see par 28). That motion was dismissed by Lindgren J on 3 June 2003; his Honour holding that there was no arguable case that the appeal would succeed: Williams v Minister for Environment & Heritage [2003] FCA 627.

66 An appeal lies from a judgment or order, not from reasons for judgment. The order which, in truth, is complained of, is the order made by the Judge revoking the order made earlier that day.

69 The appellant was not represented by solicitors or counsel either before the primary judge or on this appeal.

70 Mr Alan Oshlack was given leave to appear before the primary judge to argue Mr Williams’ case. He also sought leave from this Court to represent the appellant on this appeal. Leave was not opposed by Mr Lancaster, the second respondent’s counsel. Mr Oshlack was given leave to appear. Mr Oshlack was acting in the nature of a McKenzie friend.

71 It appears from correspondence which was provided to this Court that not only did Mr Oshlack represent Mr Williams at the hearing before the primary judge but he also acted in the nature of an agent for the appellant in negotiations between the appellant and the second respondent after the hearing before the primary judge and before the hearing of this appeal. That matter is relevant to an application made by the second respondent for costs.

72 The other matter that needs to be noticed is that the Minister complied with the judge’s direction and reconsidered the appellant’s application and on 11 June 2003 again refused to make a declaration under s 9 of the Act. The Minister gave reasons for that refusal on 28 July 2003. No application was made for a review of that decision.

73 It follows that if the primary judge had not revoked the order which he pronounced on the morning of 30 May that order would have been discharged on 11 June 2003 because the order was that the second respondent be only restrained ‘pending the Minister’s decision’.

74 Therefore the order made on the morning of 30 May, even if not revoked, would have only restrained the second respondent between 30 May and 11 June 2003, a period of 12 days.

75 The second respondent has argued that for that reason alone this appeal should be dismissed because the appeal has no utility.

76 The second respondent contended that even if the appellant were successful on the substantive ground of the appeal, namely that the trial Judge erred in the application of the decision in Johns v Australian Securities Commission & Ors [1993] HCA 56; (1993) 178 CLR 408 this Court would not make an order remitting the matter to the trial judge as sought by the appellant, because his Honour inevitably would not make the order, which was only ever made to protect the appellant’s position pending the further determination by the Minister.

77 The second respondent also argued that this Court would not allow the appeal and make the same or similar order.

78 The second respondent contended that no order could be made restraining the second respondent in the terms of the revoked order for the period of 12 days which has already past.

79 In my opinion, the second respondent’s contentions are undoubtedly right. Because the Minister reconsidered the appellant’s application, and refused it for a second time on 11 June 2003, the order which was originally made by the primary Judge would have lapsed.

80 Because the Minister has refused the appellant’s application, there is no occasion for the reinstatement of that order. There is no reason to make an order in the nature of an injunction protecting the appellant’s position pending the Minister’s review of his application.

81 The appeal has no utility and for that reason alone I would dismiss the appeal.

82 Mr Oshlack argued on behalf of the appellant that this Court should consider the substance of the appeal and rule as to the correctness of his Honour’s decision in relying upon John v Australian Securities Commission (supra) revoking his previous order. He argued that a decision of this Court would have precedent value.

83 His contention really amounted to an invitation to this Court to consider his Honour’s reasons for revoking the order and, whatever this Court’s decision on that matter, to dismiss the appeal.

85 If the appeal is without utility then this Court would be placed in a position where it would be deciding a hypothetical question. If the Court proceeded on that basis and were to rule in favour of the appellant’s contentions, it would be effectively allowing the appellant to appeal in circumstances where no appeal should be entertained. If this Court were to rule against the appellant in relation to the substance of the appeal, then again it would be deciding a hypothetical question.

86 In my opinion the appeal should be dismissed because the appeal has no utility.

88 The appellant sought costs in the event that he succeeded. I think in making that application the appellant recognised that Mr Williams’ entitlement to costs would be limited: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. Costs are to partially indemnify a party ‘for professional legal costs actually incurred in the conduct of litigation’: Cachia v Hanes at 410. Costs do not ‘include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services’: Cachia v Hanes at 409. The appellant’s actual disbursements such as court fees would be recoverable if an order were made in his favour, but Mr Oshlack’s efforts in producing written submissions and time spent in arguing the matter would not be recoverable.

89 In any event, the appellant has failed on the appeal and so is not entitled to an order as a successful litigant.

90 Mr Lancaster, who led for the second respondent, argued that if this Court were to dismiss the appeal either because it had no utility or alternatively because the trial judge was right to revoke his own order and to follow Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 then an order should be made that the appellant and Mr Oshlack pay the second respondent’s costs on an indemnity basis.

91 In support of that application he read an affidavit of Leonie Kathryn Flynn, a solicitor employed by the solicitors for the second respondent. Ms Flynn exhibited to her affidavit correspondence between the second respondent’s solicitors and Mr Oshlack relating to the appeal.

92 That correspondence discloses that the second respondent offered to bear its own costs if the appellant filed a notice of discontinuance before 30 July. The correspondence also discloses that Mr Oshlack, who was described in the correspondence as agent for the applicant, was warned that there was no practical utility in the appeal.

93 Mr Lancaster also directed our attention to Lindgren J’s decision in Williams v Minister for the Environment & Heritage [2003] FCA 627 in which his Honour dismissed the appellant’s application for an interlocutory order in the nature of an injunction, because he was of the opinion that the substance of the appellant’s appeal was not arguable, and that Johns v Australian Securities Commission (supra) obliged the primary judge to revoke the interlocutory injunction against the second respondent.

94 In my opinion, because it is not appropriate to consider the substance of this appeal, Lindgren J’s reasons for decision and his judgment are not relevant to the question whether the order for costs should be on a party and party basis or on an indemnity basis. It would be inappropriate, when determining the appropriate order for costs, to decide the substance of the appeal in circumstances where the Court is of the opinion that the substance of the appeal should not otherwise be decided.

95 It follows therefore that if the second respondent is entitled to indemnity costs it is because the second respondent had made an offer to the appellant not to seek costs if the appellant were to discontinue the appeal by 30 July.

96 There is jurisdiction to award costs against a non-party: Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 190, per Mason CJ and Deane J (with whom Gaudron J agreed); at 202 – 203 per Dawson J. Although that case concerned the construction of a Rule of the Supreme Court of Queensland, there is not such a difference between the statutory provisions in Queensland and the Federal Court Act 1976 (Cth) and Federal Court Rules to doubt the jurisdiction that exists in this Court: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224 at 229.

97 In Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396 (‘NAGM of 2002’) the Full Court said at [65]:

99 The Full Court said in NAGM of 2002 that three things had to be borne in mind. First, such an order ‘is exceptional and any application for such an order should be treated with considerable caution’ [68]. Secondly, the jurisdiction is not exercised to punish the non-party but to reimburse the party seeking costs; any costs which have been incurred by reason of the non-party’s conduct. Thirdly, simply because the non-party has assisted in preparing and presenting a hopeless case will not of itself justify such an order.

100 There is no suggestion that Mr Oshlack’s conduct added to the second respondent’s costs. In my view the contrary is more likely. Mr Oshlack was able to articulate both in writing and orally that which Mr Williams might have found difficult. In that sense he assisted the Court to deal with the matter quickly. He put the appellant’s case concisely. He behaved entirely appropriately in the Court. It may be inferred that Mr Williams does not have the resources to retain solicitors and counsel. These proceedings would have been daunting to anyone, especially someone unfamiliar with the legal system and processes. Mr Oshlack assisted by providing voluntary assistance and in doing so offered Mr Williams his own knowledge (which is not inconsiderable).

101 Persons who assist others to attempt to exercise their rights in the Courts, even where the Courts find that no rights exist, should not be too quickly mulcted in costs.

103 In the event that the appeal failed, Mr Oshlack submitted that this Court should make no order as to costs against Mr Williams let alone indemnity costs because the proceedings were instituted in the public interest to preserve Aboriginal artefacts and culture. The appellant did not stand to gain personally.

104 If a party institutes proceedings which can properly be characterised as having been brought in the public interest, and that party is unsuccessful, the public interest nature of the litigation is a factor that should be taken into account in considering any departure from the normal or ordinary exercise of the costs discretion: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. It is a matter to which regard should be had in considering the appropriate order for costs on this appeal. There is no argument about the order for costs made by the primary judge.

105 It has been said that the Court will order a party to pay costs on an indemnity basis where ‘there is some special or unusual feature in the case to justify the court exercising its discretion in that way’: Preston v Preston [1982] 1 All ER 41 at 58; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Others (1988) 81 ALR 397.

106 An order for costs on an indemnity basis is one order that a Court can make when it exercises its unfettered judicial discretion to award costs. The party seeking costs does not have to establish some special or unusual feature to move the Court to exercise its discretion in that way, although that may be sufficient in a particular case. What a party must always establish is that it would be in the interests of justice that such an order should be made. In other words, a party must establish that such an order would do justice between the parties.

107 In doing so, the moving party would need to recognise that ordinarily justice is done between the parties by awarding the successful party costs on a party and party basis. To that extent the moving party would have to establish that such an order would not do justice between the parties.

108 This is not a case in which it is necessary to consider at length the principles referable to orders for costs on an indemnity basis. Clearly, if this appeal is dismissed, the second respondent would be entitled to costs on a party and party basis against Mr Williams. The difference between indemnity costs and party and party costs on this appeal, having regard to the points involved and the time taken would not be great.

109 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 Woodward J said:

110 I do not think the presumption referred to by Woodward J arises in this case.

111 The appellant, as I have already said, is an Aboriginal man who brought his application to the Minister for the purpose of protecting Aboriginal artefacts on the land at Lake Cowal, and to protect his Aboriginal culture. There was no suggestion that his motivations are not for the very best of reasons. It is undoubtedly important to the appellant that his culture and his way of life is protected. That was his motivation for the application for judicial review and for continuing this appeal, even in light of its futility. The second respondent’s application for costs on an indemnity basis should be refused.

112 On the other hand the respondent has succeeded on the appeal. The appeal was futile. The respondent should not be denied an order for costs because of the appellant’s public interest motivation.

113 I think justice would be done between the parties by an order that the appellant pay the second respondent’s costs of the appeal on a party and party basis.

114 When dealing with the argument on costs, Mr Oshlack indicated that Mr Williams would seek the costs of the respondent’s application for costs on an indemnity basis if it were unsuccessful. The argument as to costs occupied a fraction of the hearing time and should not give rise to any separate order.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Mr Oshlack appeared on behalf of the appellant by leave

Counsel for the Second Respondent:	R Lancaster with A Seward

Solicitor for the Second Respondent:	Blake Dawson Waldron

Date of Hearing:	3 December 2003

Date of Judgment:	19 March 2004

(i)	that the area is a significant Aboriginal area; and
(ii)	that it is under serious and immediate threat of injury or desecration;

Federal Court of Australia - Full Court Decisions

Williams v Minister for Environment & Heritage [2004] FCAFC 58 (19 March 2004)