Edwards v Santos Ltd
[2011] HCA 8(2011) 242 CLR 421
(2011) 85 ALJR 464
(2011) 275 ALR 489
(Judgment by: French CJ, Gummow J, Crennan J, Kiefel J, Bell J)
Edwards
vSantos Ltd
Judges:
French CJ
Gummow JHayne J
Heydon J
Crennan J
Kiefel J
Bell J
Legislative References:
Federal Court of Australia Act 1976 - s 31A(2)
Judiciary Act 1903 (Cth) - s 32
Judiciary Act 1903 (Cth) - s 26; s 32
Federal Court of Australia Act 1976 (Cth) - s 33(4B)(a)
Native Title Act 1993 (Cth) - s 253
Judiciary Act 1903 (Cth) - s 39B(1A)(c)
Federal Court of Australia Act 1976 (Cth) - s 33(4B)(a)
Civil Procedure Act 2005 (NSW) - s 98(6)(c)
Supreme Court Act 1970 (NSW) - s 76(2)(c)
Supreme Court Rules 1970 (NSW) - Pt 52, r 7
Case References:
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Judgment date: 30 March 2011
Judgment by:
French CJ
Gummow J
Crennan J
Kiefel J
Bell J
[1] 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.