Edwards v Santos Ltd

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Crennan,Kiefel,Bell JJ.,Hayne J.,Heydon J.
• Judgment Date: 30 March 2011
• Neutral Citation: 2011-0330 HCA B,[2011] HCA 8
• Court: High Court
• Docket Number: S153/2010
• Date: 30 March 2011

[2011] HCA 8

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ

S153/2010

Noelene Margaret Edwards & Ors

Plaintiffs

and

Santos Limited & Ors

Defendant

Representation

J A McCarthy QC with J F Kildea and A L Tokley for the plaintiffs (instructed by Eddy Neumann Lawyers)

B W Walker SC with S B Lloyd SC and S R R Cooper for the first and third defendants (instructed by Blake Dawson Lawyers)

R J Webb QC with H P Bowskill and G J D del Villar for the second defendant (instructed by Crown Solicitor (Qld))

Submitting appearance for the fourth defendant

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with R G Orr QC and B Lim intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Edwards v Santos Limited

Practice and procedure — Federal Court of Australia — Summary judgment — Applications by defendants to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) — Plaintiffs ‘registered native title claimant’ under s 253 of Native Title Act 1993 (Cth) (‘NTA’) in respect of certain land — Plaintiffs and first and third defendants negotiating Indigenous Land Use Agreement (‘ILUA’) under NTA that included land first and third defendants claimed was encumbered by ‘Authority to Prospect’ (‘ATP’) granted by second defendant under Petroleum Act 1923 (Q) — ATP entitled first and third defendants to apply to Minister for grant of lease of encumbered land for purpose of petroleum exploration — Plaintiffs sought declarations that grant of lease to first and third defendants would not be valid and any lease granted would not be a ‘pre-existing right-based act’ within meaning of s 24IB of NTA — Whether plaintiffs have sufficient interest for grant of declaratory and injunctive relief — Whether questions raised by plaintiffs hypothetical — Whether plaintiffs seeking advisory opinion.

Practice and procedure — Federal Court of Australia — Jurisdiction — Section 213(2) of NTA conferred jurisdiction on Federal Court with respect to ‘matters arising under’ NTA — Where determination of whether lease would be valid and whether lease would be a pre-existing right-based act may affect ILUA negotiations — Whether negotiation of ILUA a matter arising under NTA.

Practice and procedure — High Court — Original jurisdiction — Costs — Application pursuant to s 75(v) of Constitution for writs directed to Federal Court to quash orders of that Court — Section 26 of Judiciary Act 1903 (Cth) empowers High Court to award costs in ‘all matters brought before the Court’ — Section 32 empowers High Court in exercise of original jurisdiction to grant all such remedies as parties are entitled to ‘so that as far as possible all matters in controversy between the parties’ may be ‘completely and finally determined’ — Where High Court quashes orders of Federal Court — Whether High Court may make costs order in place of orders quashed.

Words and phrases — ‘advisory opinion’, ‘certiorari’, ‘completely and finally’, ‘hypothetical’, ‘matter’, ‘reasonable prospects of success’, ‘standing’, ‘sufficient interest’.

Federal Court of Australia Act 1976 (Cth), ss 31A(2), 33(4B)(a).

Judiciary Act 1903 (Cth), ss 26, 32.

Native Title Act 1993 (Cth), s 213.

ORDER

1. A writ of certiorari issue directed to the fourth defendant to quash:

(a) the decisions of the Federal Court of Australia made on 18 December 2009 and 17 March 2010 in proceeding QUD 86 of 2009; and

(b) the decision of the Full Court of the Federal Court made on 4 June 2010 in proceeding QUD 28 of 2010.

2. Dismiss the application for the issue of a writ of mandamus against the fourth defendant.

3. The first, second and third defendants pay the costs of the plaintiffs in:

(a) the Federal Court of and incidental to the first, second and third defendants' motions for summary dismissal;

(b) the Full Court of the Federal Court; and

(c) this Court.

1 French CJ, Gummow, Crennan, Kiefel And Bell JJ. We agree with Heydon J and for the reasons he gives that the plaintiffs should have the substantive relief of certiorari and an order for costs in this Court against the first, second and third defendants.

2 That leaves the question of costs of the Federal Court proceedings.

3 The application to this Court was made necessary by the success of the first, second and third defendants upon their applications to the Federal Court under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) and the refusal by the Full Court of leave to appeal, and by the exception to the appellate jurisdiction of the High Court (otherwise conferred by s 73(ii) of the Constitution) created by s 33(4B)(a) of the Federal Court Act.

4 In the exercise of its original jurisdiction in the present proceeding this Court is required by s 32 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) to grant remedies apt to ‘completely and finally’ determine, so far as possible, all matters in controversy between the parties regarding the errors by the primary judge upon the s 31A(2) applications and by the Full Court in refusing leave to appeal. The orders quashed upon the grant of certiorari include the costs orders against the plaintiffs obtained by the first and third defendants. The second defendant did not seek costs of the proceedings in the Federal Court, including before Logan J and the Full Court.

5 The orders now to be made by this Court will not effect the complete relief to the plaintiffs mandated by s 32 of the Judiciary Act unless the plaintiffs not only are relieved from the burden of the costs of the first and third defendants erroneously imposed upon them in the Federal Court but also are placed in the favourable position with respect to costs they themselves would have enjoyed had the Federal Court litigation not been determined in the fashion which has attracted certiorari from this Court. The plaintiffs correctly submit that had the s 31A(2) applications been dismissed and, failing that, had an appeal by them to the Full Court been successful, there is no reason why costs should not have followed the event. The relief granted in this Court should include an order that the first, second and third defendants pay the costs of the plaintiffs of the Federal Court proceedings, including the Full Court proceedings.

6 Hayne J. I agree that the plaintiffs are entitled to certiorari to quash the orders made at first instance in the Federal Court of Australia (by Logan J) and the orders made on application for leave to appeal to the Full Court of that Court. The costs of the proceedings in this Court should follow the event. I do not agree that this Court can make any order in substitution for the costs orders that were made in the Federal Court at first instance and on the application for leave to appeal.

7 In Kirk v Industrial Court (NSW), six members of this Court held 1 that the Court of Appeal of the Supreme Court of New South Wales, exercising the original jurisdiction of that Court, had power to quash orders of the Industrial Court of New South Wales but did not have power to make any order in place of the orders that had been quashed. For the reasons which led to the majority's conclusion in Kirk about the powers of the Court of Appeal, the same conclusion must be reached about the powers of this Court.

8 Because no appeal lies to this Court against the refusal of the Full Court of the Federal Court to grant leave to appeal against the orders of Logan J 2, the plaintiffs brought the present proceedings in the original jurisdiction of this Court. The plaintiffs sought certiorari to quash the orders made in the Federal Court, and mandamus directing the Federal Court to hear and determine the proceedings the plaintiffs had instituted in that Court. Because the plaintiffs claimed mandamus against officers of the Commonwealth, the action in this Court was within its original jurisdiction under s 75(v) of the Constitution.

9 The importance of the distinction between this Court's appellate and original jurisdiction has been repeatedly emphasised in cases concerning the powers of the Court on appeal. In particular, the distinction between appellate and original jurisdiction is central to the reasoning which underpins the established doctrine of the Court that further evidence will not be received on appeal 3. The distinction between appellate and original jurisdiction is no less important when considering what orders this Court can make in a matter where the Court's jurisdiction is conferred by s 75(v).

10 The plaintiffs submitted that this Court's power to order the first, second and third defendants to pay the plaintiffs' costs of the proceedings in the Federal Court, at first instance and on application for leave to appeal to the Full Court, came from either s 26 or s 32 of the Judiciary Act 1903 (Cth) or some combination of the operation of those provisions. It is convenient to deal first with s 26.

11 Section 26 of the Judiciary Act gives this Court ‘jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction’. No doubt, the enactment of s 26 recognised that, in England, ‘[c]osts in Courts of Common Law were not by Common Law at all, they were entirely and absolutely creatures of statute’ 4. Be this as it may, s 26 of the Judiciary Act, in its terms, is directed to the awarding of costs in the particular matter that is ‘brought before the Court’; it is not concerned with the costs of matters other than the matter in this Court.

12 It is to be accepted, as noted in De L v Director-General, NSW Department of Community Services [No 2]5, that the power given by s 26 should not be narrowed. But in considering how s 26 is engaged in the present matter, it is also necessary to recognise that the matter in this Court...