Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland

Date of last submissions: 16 February 2009 (although further submissions may have been contemplated upon the pronouncement of judgment in the Torres Strait Regional Seas Claim proceedings)

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 121

Counsel for the Torres Strait Regional Authority: Mr C Athanasiou

Solicitor for the Torres Strait Regional Authority: HWL Ebsworth

Counsel for Mr P Gamogab: Mr D O'Gorman SC

Solicitor for the Mr P Gamogab: Fisher Dore Lawyers

Counsel for the State of Queensland: Mr J Waters

Solicitor for the State of Queensland: The Crown Solicitor

Counsel for the Commonwealth of Australia: The Commonwealth appeared by the Australian Government Solicitor

Solicitor for the Commonwealth of Australia: Mr G Kennedy, Australian Government Solicitor

GENERAL DIVISION QUD 6040 of 2001

BETWEEN: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEA CLAIM GROUP

1. The Torres Strait Regional Authority ("TSRA") and its General Manager, Mr Wayne See Kee are excused from further compliance with a subpoena issued by the Court at the request of Mr Pende Gamogab ("the issuing party") on 10 October 2008 by which the issuing party sought the production of a document described as the report of Dr Kevin Murphy which document was ultimately provided to the Court by the TSRA on 24 October 2008. 2. The report of Dr Kevin Murphy is to be made available to the TSRA for collection from the Registry of the Federal Court of Australia. 3. Mr Pende Gamogab shall pay to the TSRA the reasonable expenses incurred by the TSRA in taking steps to comply with the subpoena issued on 10 October 2008, such expenses consisting of the reasonable costs incurred by the TSRA of obtaining legal advice as to its rights and obligations under the subpoena; the TSRA's reasonable costs of conferring with the Commonwealth to determine the Commonwealth's position in relation to the subpoena and the Commonwealth's continuing dialogue with the government of PNG; the TSRA's reasonable costs of conferring with the issuing party's solicitors; the TSRA's reasonable costs of producing the report to the Court; the TSRA's reasonable costs of appearing before Finn J on 27 October 2008 to communicate the TSRA's view of its obligations under the subpoena to the Court; the TSRA's reasonable costs of preparing a bill in taxable form; and the TSRA's reasonable costs of attending to taxation of the Bill of Costs in due course in the absence of any agreement in relation to the quantum of the costs. 4. The notice of motion of the TSRA of 3 November 2008 is dismissed with no order as to costs. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

GENERAL DIVISION QUD 6040 of 2001

BETWEEN: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEA CLAIM GROUP

The questions in issue 1 The questions to be determined in these proceedings (and I use the term "proceedings" in a neutral sense for present purposes recognising that the term has statutory significance for the purposes of the Native Title Act 1993 (Cth) (referred to in these reasons as either "the Act" or the "Native Title Act")), are these. 2 First, whether the Torres Strait Regional Authority (the "TSRA") is entitled to an order under Order 27, rule 11 of the Federal Court Rules that Mr Pende Gamogab pay the TSRA's solicitor and client costs of complying with a subpoena issued by the Court, on his application, on 10 September 2008 in the principal application in which Mr Gamogab is a respondent, ordering the General Manager of the TSRA, Mr Wayne See Kee, to produce to the Court (for inspection by Mr Gamogab), a report by an anthropologist, Dr Kevin Murphy. 3 Secondly, whether the Court ought to order Mr Gamogab to pay the TSRA's costs of its Notice of Motion issued on 3 November 2008 (including its costs of preparing for and attending what would have been the hearing of the motion but for the events to be described shortly), by which the TSRA sought an order setting aside the subpoena, notwithstanding that ultimately the Notice of Motion did not proceed to a hearing and determination on the merits of the matters in controversy on the motion. 4 These two questions give rise to a threshold question of whether s 85A of the Act applies in the determination of either question and, a further question of, if so, what is the proper operation of s 85A of the Act in all the circumstances. 5 Section 85A of the Act is in these terms: 85A Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

The background facts 6 The background facts are these. 7 On 23 November 2001, Leo Akiba, Joseph Tabitii, George Mye and Napoleon Warria commenced a Native Title Determination Application under s 61 of the Act in the Federal Court, representing communities of Islanders in the Torres Strait. The Torres Strait Island communities on whose behalf the application was brought comprise the native title claim group for the purposes of the Act. The area covered by the application is approximately 44,000 square kilometres in the Torres Strait and the Coral Sea, seaward of the high water mark around islands in the Torres Strait. The claim is generally described as the Torres Strait Regional Seas Claim. The claim has been heard by Finn J and is reserved for his Honour's consideration. 8 It is not necessary to further describe in these reasons the scope of the land and waters the subject of the claim. 9 There are two classes of native title rights and interests claimed as initially formulated. The first class concerns areas where the claim is for exclusive possession. In relation to other areas, the native title rights and interests asserted include rights to control access to and use and enjoyment of the land and waters and the taking of resources by others subject to various exceptions. 10 The respondents include the Commonwealth of Australia, the State of Queensland, the Australian Maritime Authority, particular indigenous interests and some nationals of Papua New Guinea (PNG), among others. The TSRA is a statutory authority established under the Aboriginal and Torres Strait Islander Act 2005 (Cth). It is a representative body recognised under s 203AD of the Native Title Act. It is a respondent to the s 61 determination application by operation of s 66(3)(a)(iii) and s 84(3) of the Act. Through its native title unit, it has been assisting the s 61 applicant in the conduct of that application and, by its employed solicitor, Mr Saylor, the TSRA is the solicitor on the record for the applicant in that application. 11 The application has been amended from time to time and various motions for joinder of parties have been heard and determined. 12 One such joinder motion was brought by Mr Gamogab on behalf of the Dangaloub‑Gizra Group at Kupere Village (also known as Kupiru) in the South Fly District of PNG. Mr Gamogab asserted traditional rights of movement and ownership and use of resources in the Torres Strait region which is now the subject of the Torres Strait Regional Seas Claim, on behalf of the group. It is not necessary to record in these reasons, contextually or otherwise, the oral history of the Dangaloub‑Gizra Group outlined by Mr Gamogab or the "Myth of Origin" passed from generation to generation which formed the basis of the joinder application. Mr Gamogab's application for joinder was determined by French J on 8 September 2006: Akiba and Others on Behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) [2006] FCA 1173; (2006) 154 FCR 513 (Akiba v State of Queensland (No 2)). His Honour considered that Mr Gamogab had demonstrated an interest which would render him eligible for joinder as a party. However, his Honour concluded that, as a matter of discretion, Mr Gamogab ought not to be joined. 13 Mr Gamogab's interest in the s 61 application, however, remains important. 14 As to Mr Gamogab's interest, his Honour recognised that within Australia, indigenous persons who are not claimants but contend that they have traditional rights and interests within the area of an application for a determination of native title may have an interest which renders them eligible for joinder as parties under s 84(5) of the Act. His Honour also noted that the criteria for the recognition of native title rights and interests at common law do not exclude the possibility that the common law could recognise the traditional rights and interests of persons who are neither Australian residents nor citizens and thus it was not beyond the bounds of possibility that a PNG national living in PNG who is a traditional inhabitant of the claim area may have rights and interests capable of recognition by the common law: Akiba v State of Queensland (No 2), [34] and [35]. Although (having regard to the expression "native title" and "native title rights and interests" in s 223 of the Act) and the definition of the term "Torres Strait Islander" in s 253 of the Act a determination of native title could not be obtained by PNG nationals on the strength of rights and interests possessed within Australian waters under traditional laws acknowledged and customs observed by the society of which they are part, his Honour recognised that: Nevertheless, the rights and interests of such persons might limit or qualify the native title rights and interests of Torres Strait Islanders. Such a limitation could arise as an element of the traditional laws acknowledged and the traditional customs observed by the Islanders themselves. This would be consistent with the traditional concurrent use of areas of the Torres Strait within the claim area with people from PNG. In my opinion, on that basis, the interests asserted by Mr Gamogab, as a member of the relevant traditional community, would render him eligible for joinder as a party. [emphasis added] 15 It followed that a consideration of the legitimate traditional rights and interests of PNG nationals who are traditional inhabitants of the claim area would lead to a more accurate definition of the native title rights and interests claimed by the applicant Islander communities and the determination could therefore protect the rights and interests of traditional inhabitants of PNG by limiting the scope of the rights and interests of the Torres Strait Regional Seas Claim applicant communities: [37]. 16 As to the exercise of discretion, his Honour considered the implications of negotiations undertaken between Australia and PNG for the purposes of a treaty entered into between the two countries in 1978 entitled Treaty between Australia and the Independent State of PNG concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters (the "treaty"). His Honour also considered Commonwealth legislation adopting the treaty. By those negotiations an "Exchange of Notes" took place between the two countries which identified a list of villages (14) whose inhabitants would be regarded as "traditional inhabitants" for the purposes of the treaty and who might thus seek access to Australian waters. Mr Gamogab's village of Kupere was not one of those regarded as a treaty village. Nevertheless, negotiations between the two countries involved investigation of whether traditional inhabitants of particular villages might be brought, by agreement of the two countries, within the treaty thus enabling those inhabitants to take advantage of the treaty's benefits. 17 His Honour concluded that the s 61 Native Title Determination Application ought not to be used as a vehicle for advancing the claim of a particular PNG village and its traditional inhabitants for the purposes of the treaty. That was a question for the executive governments of each country. His Honour considered that there was a risk that the joinder of Mr Gamogab would bring to bear on the s 61 proceedings "debates between village communities in PNG about their respective interests in the Torres Region Seas Claim area": [48] 18 In Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578, the Full Court, Gyles J (Sundberg J agreeing) concluded that the exercise of discretion on the part of the primary judge had miscarried and that Mr Gamogab should be joined as a party to the proceedings under s 84(5) of the Act. The finding that Mr Gamogab's interest might be affected by the determination was uncontested by the s 61 claimant applicant. The Full Court noted that the joinder of parties (and thus the joinder application) is "a necessary aspect of the management of all litigation" (per Gyles J at [60]) and that the risk identified by the primary judge could hardly outweigh the statutory purpose of the Act of having all parties whose interests might be affected by the s 61 application, before the Court at the one time: [61]. The application for joinder was remitted to the primary judge to determine the terms of joinder and whether any limitations should be imposed upon the scope of Mr Gamogab's participation as a party. 19 As to s 85A, Gyles J said at [67] (Sundberg J agreeing at [49] and [50]): The appellant did not seek costs of the appeal. That is consistent with s 85A of the Act, which does not apply in terms to appeal, but does refer to proceedings in the Federal Court. That being so, there does not appear to be any scope for application of the Federal Proceedings (Costs) Act 1981 (Cth). 20 Kiefel J concluded that the appeal ought to be dismissed. As to the costs of the joinder motion, her Honour at [48] seemed to accept that s 85A applied to that question: Section 85A(1) of the NTA provides that, unless the Court orders otherwise, each party to a proceeding must bear his or her own costs. A circumstance predicated by subs (2) as one appropriate to an order for costs is where a party, by any unreasonable act or omission, has caused another party to incur costs in connection with the conduct of the proceeding. I do not however understand the respondents to the appeal to seek costs and I would not expect the Commonwealth to do so. 21 On 16 November 2007, French J framed the terms of Mr Gamogab's joinder. Apart from directing the PNG parties to identify the content of their use of the waters of the claim area and whether any part of that use had been recognised traditionally by the Torres Strait Islander applicant, the primary judge made this order: 4. A PNG party may not raise any question, or make any contention in the sea claim proceeding which relates to the treaty, including, but without being limited to, any question which relates to: (a) the basis for formalising the process of the inclusion and non‑inclusion of PNG villages in the exchange of notes, in relation to which persons have been or should be acknowledged by the governments of Australia and PNG as taking part, and being accepted, in free movement, to the Torres Strait protected zone for the purposes of the treaty; (b) the absence of reference to any person or village in the exchange of notes; (c) the reference to any person or village in the exchange of notes; (d) whether or not any persons are, or should be acknowledged as being traditional inhabitants, including whether any villages are villages from which traditional inhabitants come; (e) the nature or content of any rights or obligations arising under the treaty; or (f) the meaning or application of any of the articles of the treaty. 22 On 19 May 2008, the applicant in the s 61 application filed a draft statement of Dr Kevin Murphy in support of the claims of the applicant. At para 32 of the draft statement, Dr Murphy described aspects of his background experience in these terms: In 2004 I was engaged by the TSRA as a consultant to conduct research for the TSRA, the Australian Department of Foreign Affairs and Trade, Papua New Guinea Department of Foreign Affairs, and Papua New Guinea Department of Provincial Affairs, Western Province. That research considered the various claims and counterclaims that were being put forward by Papua New Guineans of a number of Western Province villages for inclusion in the category of "traditional inhabitants" for the purpose of the administration of the Torres Strait Treaty. 23 The document the subject of the subpoena of 10 October 2008 was described in the schedule in this way: A copy of the report of Kevin Murphy, Anthropologist, referred to in paragraph 32 of his draft statement dated 19 May 2008 being his research for the TSRA, supplied to Fisher Dore Lawyers by the TSRA Native Title Office, the Australian Department of Foreign Affairs and Trade, Papua New Guinea Department of Foreign Affairs, and Papua New Guinea Department of Provincial Affairs, western province. 24 On 24 October 2008, the report was provided to the Court on the footing that the TSRA sought to be heard as to the grounds of objection to the subpoena and thus production of the document, and should production be ordered after hearing objections, the relevant restrictions that might be imposed on production and use of the document. On 27 October 2008, objection to the subpoena was made before the presiding judge in the s 61 application, Finn J. The TSRA filed and read the affidavit of Mr Wayne See Kee sworn 25 October 2008 and foreshadowed the filing of the motion to set aside. The TSRA in its written outline of argument on 27 October 2008 objected to production on the ground of public interest immunity. The TSRA sought an adjournment of the substantive argument to enable all parties to be heard, including the Commonwealth and PNG. 25 On 13 November 2008, the Australian Government Solicitor ("AGS") advised the Court and the parties, on behalf of the Commonwealth, that it had been instructed in respect of a potential claim of public interest immunity in relation to the report. On 28 October 2008, the Commonwealth engaged with the government of PNG on the immunity question. The Commonwealth contended that at least three months would be required to reach an informed decision on the issue of "public interest" in the relations between Australia and PNG with respect to the report. That position was confirmed by the Commonwealth at a Court mention on 24 November 2008 at which the TSRA informed the Court that "relevance" would also be an issue (that is, a ground of objection) on the motion to set aside. 26 The hearing of the TSRA's motion was set down for hearing on 15 January 2009 before me. Finn J had elected not to hear the substantive argument on the motion so as to avoid being drawn into controversy on questions his Honour may have to decide in the s 61 application. On 19 December 2008, the AGS advised the Court and the parties that the Commonwealth would assert a claim of public interest immunity on 15 January 2009. The TSRA says that it elected to leave the substantive conduct of the public interest immunity claim to the Commonwealth as the appropriate party. On 9 January 2009, the AGS advised the Court and the parties that the claim of public interest immunity was under active discussion with the government of PNG. On 12 January 2009, the AGS advised the parties that the Commonwealth would not assert a claim of public interest immunity concerning the report. 27 On 13 January 2009, the solicitors for Mr Gamogab served on the TSRA their client's submissions on the motion directed to the question of public interest immunity. The submissions do not take issue with any facts deposed to in the affidavits filed by the TSRA in support of the motion: see affidavit of Mr Wayne See Kee and the affidavit of Mr Gavin McCosker. The TSRA says that Mr Gamogab's advisers did not address the further question of the relevance of the Murphy report. No material was filed by Mr Gamogab in resisting the motion, other than the written submissions. 28 On 14 January 2009, the TSRA filed its submissions in support of the motion. 29 Senior counsel for Mr Gamogab shortly thereafter advised the TSRA that Mr Gamogab had been provided with a copy of the report by the PNG government without any restriction as to its use. Late on 14 January 2009, Mr Gamogab's solicitors advised the parties by email that Mr Gamogab would no longer "pursue the subpoena". At the hearing on 15 January 2009, Mr Gamogab's senior counsel informed the Court that the PNG government had disclosed the report at large and Mr Gamogab had obtained a copy of it on 9 January 2009. Mr Gamogab's counsel had given a copy of the report to counsel for the State of Queensland on 14 January 2009. 30 On 15 January 2009, the parties agreed that there was no point in proceeding with the motion except as to costs. As to costs, counsel for the TSRA requested the Court to determine the costs by forming a preliminary view of what the merits might have been had the motion proceeded. That course was urged so as to determine whether the costs were properly and reasonably incurred and whether a party ought to be ordered to bear them. Counsel for the TSRA and Mr Gamogab agreed to provide written submissions on costs and agreed that costs would be resolved on the papers without further hearing. The Commonwealth, the State of Queensland and the commercial fishing interests withdrew from any further consideration of the matter of costs. 31 Submissions were made to the Court that the issue of costs ought to await the pronouncement of judgment by Finn J in the Torres Strait Regional Seas claim. It is not clear to me how the pronouncement of judgment in the s 61 application bears on the resolution of the costs on the motion. Nevertheless, I have been willing to await pronouncement of the judgment. However, the judgment remains reserved and there seems to me to be no real point or advantage in continuing to await that judgment and therefore I have elected to resolve the costs issues before me, now.

Section 85A of the Native Title Act 32 By s 13(1)(a) of the Act, an "application may be made to the Federal Court under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title" [emphasis added]. An "approved determination of native title" might arise out of an application under s 13(1)(a) or a compensation application under s 13(2) and Division 5 of Part 2 (especially by operation of s 50(2)), or by reason of an order, judgment or other decision of a recognised State or Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory: s 13(3). 33 Section 13(1)(b) provides for an application to the Court under Part 3 to revoke or vary an approved determination of native title. 34 Section 61 of the Act, contained within Division 1 of Part 3 of the Act, provides for an application to the Federal Court as contemplated by s 13(1)(a) for a determination of native title. The Torres Strait Regional Seas claim is such an application. Division 1A of Part 3 (see also s 60A(1)) provides for "various other applications to the Federal Court": see s 69(1) and particularly s 69(2). 35 Part 4 of the Act is addressed by the heading "Determinations of the Federal Court". Section 79A contains an "overview" of Part 4 and provides that Part 4 "has the rules for processing Federal Court applications, and making determinations, relating to native title". Division 1A is said by s 79A to contain the "general rules". Division 1A of Part 4 contains ss 80 to 86 and thus includes s 85A. 36 Section 80 describes the "operation" of Part 4 in these terms: The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title. [emphasis added] 37 The integers effecting the application of Part 4 are proceedings, in relation to applications, that relate to native title. 38 Section 81 addresses the jurisdiction of the Federal Court and provides: The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court. [emphasis added] 39 Section 84(1) concerning "Parties", under the heading "Coverage of Section" applies s 84 to proceedings in relation to applications to which s 61 applies. 40 Section 69(2), which also falls within Part 3 of the Act, applies Division 1A of Part 3 to "any other application" to the Federal Court in relation to a matter arising under the Act, which has the effect that such applications must comply with the Federal Court Rules referred to in s 70(1) of the Act. An application under s 69(2) is not an application under Part 3 contemplated by s 13(1)(a), that is, a native title determination application. Section 213 of the Act confers what is conventionally known as "subject matter jurisdiction" on the Federal Court by providing that, subject to the Act, the Federal Court "has jurisdiction in relation to matters arising under this Act" [emphasis added]. That jurisdiction is not conferred exclusively. 41 The justiciable controversy before the Federal Court in the Torres Strait Regional Seas claim is the application under s 13(1)(a) and s 61(1) of the Act for a determination of native title. That claim and the merits in relation to its particular integers are reserved for determination before Finn J. Plainly, s 85A applies to such an application and any appeal: The Lardil Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453; Brownley & Others (on Behalf of the Bibila Lungutjarra (Waljen) People v Western Australia & Others [1999] FCA 1431; (1999) 95 FCR 172; O'Mara v Minister for Lands [2008] FCA 51; (2008) 167 FCR 145; De Rose v State of South Australia (No 3) [2005] FCAFC 137. 42 That application however, framed as it is, by litigation before the Federal Court, gives rise to procedural steps in the prosecution and ventilation of the issues in the application. 43 Those steps might well include, for example, questions going to the joinder of parties (described by the Full Court in Gamogab v Akiba, as previously noted, as "a necessary aspect of the management of all litigation", per Gyles J at [60]); or orders for the delivery of a statement of facts, issues and contentions addressing elements of the s 61 claim more fully; a consideration of whether something in the nature of a more formal pleading should be delivered by an applicant and, in consequence, a defence by respondents or a particular respondent such as the State of Queensland; orders as to the treatment of separate questions such as whether connection is made out on the material; hearings concerning the preservation of evidence; orders to give discovery of particular, although limited, classes of documents; notices to admit; orders as to the production of documents by way of subpoena; applications for the striking out of a claim or a pleading; scheduling orders for the exchange of statements and anthropological reports; and many other such matters that represent procedural steps, between parties on the record, along the way to a judicial determination of the justiciable controversy. 44 Some of these steps will also involve controversy and resolution at directions hearings or resolution by the Court after a contested hearing of the question. All of them are, however, orthodox steps by parties along the path of the proceeding framed by the s 61 application.

Lardil v State of Queensland 45 In Lardil v State of Queensland, Dowsett J at [156] (French J agreeing at [68]), concluded that the jurisdiction conferred by Part 4 supplements the operation of Part 3 and that an application which relates to native title for the purposes of s 81 is an application made pursuant to Part 3 (as contemplated by s 13(1) or s 50(2)). That, in their Honours' view, would not include "any other application" referred to in s 69(2) or a "matter arising under the Act" for the purpose of s 213(2). Thus, their Honours considered that the conferment of jurisdiction pursuant to s 81 is limited to matters arising under Part 3 (that is, as Dowsett J had earlier discussed, the three applications contemplated by s 61(1), namely, an application for a determination of native title; an application for revocation or variation of an approved determination of native title, or a determination of compensation under s 50(2)). 46 The point of the majority analysis is reflected in the conclusion at [157] that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred in relation to matters arising under the Act. Since, in Lardil v State of Queensland, the Court was exercising the subject matter jurisdiction conferred by s 213(2), s 85A did not apply to those proceedings: [159]. 47 The TSRA says that it necessarily follows from Lardil that since the proper characterisation of the notice of motion is an application to set aside a subpoena on grounds of relevance and public interest immunity, that application is not a Part 3 application and therefore s 85A does not apply to the determination of the costs of the motion. 48 It is important to remember however that in Lardil the native title claimants on behalf of the Lardil Peoples (claiming rights over certain sea areas in the Gulf of Carpentaria) brought an application for a declaration that one respondent, Pasminco, in obtaining an authority to establish a buoy mooring under relevant Queensland maritime legislation within the Lardil claim area, without consulting the Lardil Peoples and without complying with the future act provisions of the Native Title Act (and provisions of the Queensland legislation), had invalidly obtained the buoy mooring authority. The applicants also sought final relief in the form of a permanent injunction restraining Pasminco from giving effect to the authority. 49 The source of the Federal Court's jurisdiction was s 213(2) (see also s 39B(1A) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth)) because the application relied for its federal element on contended non‑compliance with the future act provisions of the Native Title Act and that was a "matter arising" under the Act as "the right or duty … sought to be enforced owes its existence to a provision of the Act": Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656‑657 per Brennan CJ, McHugh and Gummow JJ. Contended non‑compliance with the Queensland State legislation fell within the accrued jurisdiction of the Federal Court as part of what was found to be a "single controversy". 50 Although, of course, the conduct of Pasminco of obtaining a licence and installing a buoy mooring affected the claim area, the application for a declaration of invalidity and final injunctive orders formed no part of the Part 3 proceeding within the s 81 jurisdiction for a determination of native title within s 13(1)(a) and s 61 of the Act. It was an independent application concerning a "matter arising" under the future act provisions of the Native Title Act. Two things should be noted about the subpoena and the motion to set aside.

The subpoena and the notice of motion 51 First, neither matter is a "matter arising" under the Act. The application for leave to issue the subpoena, the issue of the subpoena and the notice of motion to set aside the subpoena are all matters arising under the Federal Court of Australia Act and the Federal Court Rules: s 59; s 59(2)(zj); Order 27, rule 2 (as to issue of the subpoena); Order 27, rule 4 (as to the notice of motion to set aside); Order 78 (as to the application of the Federal Court Rules to the s 61 application); Order 78, rule 3(2). 52 Although s 70(1) of the Native Title Act requires that an application comply with the Federal Court Rules, applications made in accordance with those rules are not matters arising under s 70(1) of the Act. 53 Thus, s 213(2) is not relevant to the present question. 54 Secondly, the procedure invoked by Mr Gamogab is a procedure for securing access to a document, prima facie, for the purpose of enabling Mr Gamogab to advance and have determined within the limitations imposed by French J, the interest he sought (and seeks) to ventilate as a respondent in the s 61 application exclusively vested in this Court. There is such a necessary interconnection between the s 61 application and the procedural application made within it, that the invoking of the subpoena procedure forms part of the proceeding to which s 85A applies.

O'Mara v Minister for Lands 55 In O'Mara v Minister for Lands (supra), Reeves J concluded that s 85A did not apply to the matters before his Honour. That conclusion, with respect, was not surprising as the substantive application was an application made by three members of the Wiradjuri People for an injunction restraining the New South Wales Minister for Lands from executing an agreement under s 31 of the Native Title Act, already executed by the authorised s 61 claimants (O'Mara and Syme) and further restraining the Minister from granting a mining lease to a particular coal company. The "matter" as his Honour described it, which was the subject of the injunction application, involved a claim for substantive relief quite different to the s 61 relief. The applicants were not the s 61 applicants and nor were they a party to that application. 56 Whilst s 85A does not apply to the non‑exclusive jurisdiction conferred in relation to "other applications" under s 69(2) or in relation to "matters arising under the Act" under s 213(2) (having regard to Lardil and Brownley) the steps taken by Mr Gamogab of seeking leave to issue the subpoena and effecting service of the subpoena were facilitative steps taken inter‑parties in the ventilation of his interest in the s 61 proceeding and the TSRA's notice of motion to set aside joins issue with those steps. Section 85A would have an unnecessarily limited operation if, in its application to a s 13(1) and s 61 Part 3 application, it simply governed some segmented part of the determination application (perhaps the putting on of evidence and the conduct of the hearing) but not any step along the way in giving expression to the subject matter of that application, such as seeking to gain access to a document by subpoena from another party on the record albeit in a particular capacity (see [80] of these reasons), said to be relevant to the issues in the s 61 application.

Kohen's case 57 In Kohen v Deerubbin Aboriginal Land Council [2001] FCA 343, Madgwick J considered an application by Dr Kohen, an expert engaged by the applicant in s 61 proceedings, to set aside a subpoena issued by the third respondent in that proceeding, the Deerubbin Aboriginal Land Council (the Council) directing Dr Kohen, a non‑party, to produce a wide range of documents which may have been relied upon by him when formulating his report (field books, field notes, emails, information stored in computers or any other documents etc). Dr Kohen accepted that he could not resist the subpoena if fair estimates of his compliance costs were paid ($5,000). The issuing party was ordered to pay those costs and the motion to set aside was otherwise dismissed. Dr Kohen sought the costs of the motion to set aside the subpoena and Madgwick J said this: 10. A request has been made for an order that the [Council] pay Dr Kohen's costs of these proceedings. These proceedings are probably a separate proceeding between Dr Kohen and the Council, and it is doubtful whether the prima facie prohibition in s 85A(1) of the Native Title Act 1993 (Cth) on parties' costs orders applies. In any event, I do not think that this is a matter in which it is appropriate to make a costs order. Accordingly, the parties are to pay their own costs of this application. 58 The reasons are brief (with the s 85A(1) point being dealt with in the final paragraph) because Madgwick J was dealing with a subpoena addressed to a non‑party who conceded the burden of the subpoena and obtained an order for payment of his compliance costs. No more than an impressionistic consideration was given to the question of s 85A(1) because his Honour thought a costs order was, in any event, inappropriate. For the reasons already indicated, I am not satisfied that s 85A has no application to the costs incurred by parties in causing a subpoena to be issued or bringing on a motion to set aside the subpoena simply because the application does not concern, as its subject matter, the determination of native title rights. If the application involves a procedural step necessarily interconnected with the ventilation of a party's interest in a s 61 proceeding where the addressee is a participant in the proceeding, it seems to me that s 85A is very likely to apply and, in the case of the subpoena Mr Gamogab caused to be issued and the challenge to it, s 85A does apply. 59 The question of whether the application for leave to issue the subpoena was made in good faith or as an abuse of process raises quite separate questions. 60 I am satisfied that s 85A applies to the application for leave to issue the subpoena, service of the subpoena and the notice of motion to set aside the subpoena.

The operation of s 85A 61 Section 85A operates to remove any ground of expectation that unless "cause" is shown for some other order to be made, costs will usually follow the event in accordance with settled principle guiding the exercise of discretion to award costs under general statutory provisions conferring such a power: Ward v Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305 at 312 [33] per Lee J; Davidson v Fesl (No 2) [2005] FCAFC 274 at [9] per French and Finn JJ. As Lee J observed in Ward at [34], the discretion of the Court under s 85A to award costs is "not confined". The matters to be taken into consideration in making a costs order are left by s 85A to the Court as a "discretion to be exercised judicially". However, the starting point is that each party "must bear his or her own costs" (the language of s 85(1)) unless the Court determines that it is appropriate in all the circumstances to make an order for costs. The circumstances informing whether the Court will do so are not confined to unreasonable acts or omissions on the part of a party sought to be burdened with a costs order. Plainly enough, one express basis upon which the Court may order a party to bear costs is that the party has engaged in unreasonable conduct within s 85A(2) of the Act.

The TSRA's essential position 62 The TSRA makes two essential points in relation to the application of s 85A. 63 First, the TSRA says it was put to cost and expense in responding to the subpoena and was entitled to examine the relevance of the report to the interest Mr Gamogab sought to advance in the s 61 application. It says that those costs include the costs of obtaining legal advice as to its rights and obligations regarding the subpoena, conferring with the Commonwealth to determine its position in relation to the Commonwealth assuming the conduct of the objection to produce the report on the ground of public interest immunity, the costs of conferring with Mr Gamogab's solicitors and the legal representatives of other parties to the s 61 application, the costs of producing the report to the Court and the legal costs associated with the hearing before Finn J on 27 October 2008 including briefing counsel to appear and objecting to further production of the report: Chapman v Luminis Pty Ltd (No 3) [2000] FCA 1120; (2000) 104 FCR 368; Australian Prudential Regulation Authority v Rural and General Insurance Limited [2004] FCA 933; Charlick Trading Pty Ltd v Australian National Railways Commission (Charlick Trading v ANRC) [1997] FCA 674; (1997) 149 ALR 647. 64 These costs, it says, do not include the costs associated with filing and maintaining the notice of motion to set aside the subpoena. 65 The TSRA also contends for the propositions at [66]. 66 Under Order 27, rule 11 of the Federal Court Rules, the Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena, and an addressee of a subpoena who is a non‑party is entitled under Order 27, rule 11 to an award of their solicitor and client costs reasonably incurred in respect of the subpoena: Chapman v Luminis Pty Ltd (No 3) (supra) per von Doussa J at [28] to [33] and particularly at [34]. Compliance with a subpoena extends to making lawful objection to the subpoena (Chapman v Luminis at [34]) but not to proceedings to set aside the subpoena: Chapman v Luminis at [33]; Charlick Trading v ANRC per Mansfield J at 651. Order 27, rule 11 encompasses reasonable expenses incurred in seeking advice as to the validity of the subpoena, including whether to comply with it at all or in part; correspondence or attendances on a party issuing a subpoena; advice as to whether documents are confidential or properly subject to claims for privilege; correspondence and attendances and negotiations with the issuing party as to the terms upon which access to the document should be permitted by the Court including the negotiation of undertakings as to confidentiality; attendances in Court when the subpoena is called on or stood over including attendances to make out a claim that the document subpoenaed should be protected from unrestricted access due to its character; and steps to ensure that confidentiality undertakings proposed to be given, have in fact been properly given: Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284 per Lockhart J at 285 and 286; Charlick Trading v ANRC at 649; Chapman v Luminis at [28] to [30]. Since the TSRA has played no role in the s 61 application in its "own right" and is a party solely on the basis of its broader statutory responsibilities as a representative body under the Native Title Act, the TSRA should be considered as a non‑party in any real sense and thus the TSRA ought to recover, on a solicitor/client basis, the costs of a motion to obtain an award of costs for complying with the subpoena, the costs of the preparation of a bill of taxation and the costs of attending to taxation. 67 Secondly, the TSRA says that Mr Gamogab acted unreasonably thus causing the TSRA to incur costs within s 85A(2) of the Act (should s 85A apply) because Mr Gamogab understood that Mr [Dr] Murphy's report was jointly commissioned by the Australian and PNG governments as part of a consultancy for the purpose of considering the claims of additional villages to be included in the PNG Treaty Village List; Mr Gamogab understood that the TSRA simply facilitated the commissioning of the report and that the Commonwealth was the Australian party with the principal interest in the report; Mr Gamogab understood that the TSRA had neither referred to nor sought to rely on the report in the s 61 application on behalf of the applicant; Mr Gamogab understood the true role of the report in the context of the treaty discussions; Mr Gamogab understood that the report was confidential and would be subject to public interest immunity, going to treaty issues the subject of negotiations between Australia and PNG; Mr Gamogab understood that production of the report would destroy its confidentiality, prejudice those who participated in its preparation and would be likely to incite violence; Mr Gamogab understood the order of French J of 16 November 2007 and understood that the report would not be probative of any matter relevant to the interest Mr Gamogab was entitled to ventilate under Order 4 of those orders; and, although Mr Gamogab obtained a copy of the report on 9 January 2009, he did not advise the TSRA until late on 14 January 2009, thus causing the TSRA to incur unnecessary costs in preparing for the hearing on 15 January 2009. 68 Finally, the TSRA says that Mr Gamogab sought the report for an improper purpose.

Conclusions emerging from the material and submissions filed by the parties 69 Before addressing the consequences for the resolution of costs of the unconditional release of the report by the PNG government and Mr Gamogab's consequent election not to pursue the subpoena and the TSRA's acceptance that no point remained in pursuing the motion on the merits, the following conclusions emerge from the material and submissions filed by the parties. 70 First, Mr Gamogab was at all material times a respondent with an interest as described by French J in Akiba v State of Queensland (No 2) (see [12] to [15] of these reasons) to protect and advance within the s 61 application. That interest provided the foundation for Mr Gamogab's joinder. The limitations relating to treaty questions imposed upon his participation arising out of the Order of 16 November 2007 (see [21] of these reasons) deliberately left open the possibility that a consideration of the legitimate traditional rights and interests of PNG nationals who are shown to be traditional inhabitants of the claim area might lead to a more accurate definition of the native title rights and interests claimed by the applicant Islander communities and, therefore, the determination in the s 61 application could protect the rights and interests of a PNG traditional inhabitant by limiting the scope of the rights and interests of the Torres Strait Regional Seas Claim applicant Islander communities (see [14] and [15] of these reasons). 71 Therefore, the report of Dr Murphy, although commissioned by the governments of Australia and PNG (and the TSRA in a facilitative role) and directed to claims by Western Province village inhabitants for treaty inclusion as "traditional inhabitants", was, it seems from para 32 of the draft statement of Dr Murphy, based on "research" that "considered the various claims and counterclaims being put forward by Papua New Guineans" of a number of villages (and their inhabitants) related to or touching upon a part or parts of the area of the Torres Strait Regional Seas Claim, albeit in aid of the treaty inclusion issue. 72 It seems to follow that Dr Murphy's research of traditional practices forming the basis of the claims and counterclaims of those village inhabitants, in and in connection with the claim area, may arguably reflect evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding and thus represents evidence potentially relevant to Mr Gamogab's interest: s 55 Evidence Act 1995 (Cth). 73 Certainly, I am not able to conclude that the report was not relevant to a question in issue in the s 61 claim. 74 Therefore, it further follows that I cannot conclude that Mr Gamogab acted for an improper purpose in seeking leave to issue the subpoena and nor can I affirmatively conclude (and I would not do so as a matter of inference) that Mr Gamogab was using the s 61 application and subpoena processes available to him within it, as a vehicle for advancing a treaty claim for Mr Gamogab and the inhabitants of Kupere Village, as French J apprehended might occur (see [16] and [17] of these reasons). 75 It is open to conclude that Mr Gamogab forensically sought to obtain the report in order to aid the articulation of his interest in the s 61 proceeding. 76 It also further follows that even if Mr Gamogab understood the real purpose of Dr Murphy's report; the identity of the commissioning parties; the use to which the report was to be put by the governments of Australia and PNG; the Commonwealth's particular interest in the report; and that neither the TSRA nor the s 61 applicant had sought to rely on the report in the s 61 application, none of these considerations provide an answer to the proposition that the research attributed to the report by para 32 of the draft Murphy statement may arguably be relevant to facts or issues in question in the sense described above in the s 61 application, affecting Mr Gamogab's interest. 77 Secondly, it seems clear that Mr Gamogab understood when he made application for the issue of a subpoena that the report had been prepared by Dr Murphy for the Australian Department of Foreign Affairs and Trade, the Papua New Guinea Department of Foreign Affairs and that country's Department of Provincial Affairs, Western Province for the purpose of aiding the resolution of various claims and counterclaims of Western Province village inhabitants for inclusion in the category of "traditional inhabitants" under the treaty, because that is what the draft statement said. 78 Mr Gamogab would therefore have understood that the report was likely to address sensitive questions of treaty inclusion and was, in all probability, confidential. Mr Gamogab would have understood that questions of public interest would be likely to arise concerning the relationship between Australia and PNG should production of the report be compelled by invoking subpoena discovery procedures inter‑parties within the s 61 application, in aid of his interest in that application. 79 Questions of confidentiality do not provide a basis for resisting production of a document relevant to issues in the application, although conditions and restrictions are generally imposed upon the scope of disclosure and upon the use of the document in order to preserve and protect the confidentiality of the information contained within the report. Mr Gamogab would have understood when seeking leave to issue the subpoena that questions of public interest immunity were likely to arise in relation to a document written in order to aid two national governments in treaty negotiations as to possible inclusion of particular villages within the treaty entered into by those two sovereign States. 80 Thirdly, the TSRA is a respondent to the s 61 application pursuant to s 66(3)(a)(iii) and s 84(3) of the Act. It is a representative body. It is, through its employed solicitor, the solicitor on the record for the applicant. It exercises these roles in the discharge of statutory obligations. Although the TSRA does not advance its own interest in the s 61 application, the special nature of a native title determination application under the Act and the particular role cast upon a representative body under the Act suggests that the TSRA is not properly characterised as a "non‑party" in the conventional sense. The TSRA performs what I would describe as an engaged statutory role as a skilled addressee of the issues inherent in the determination of the s 61 application. 81 In that sense, it is not simply in the orthodox position of a non‑party. It assumes the position of a mezzanine party between that of a party agitating its own interest and that of a non‑party. 82 However, it is also clear that the Murphy report commissioned by the TSRA for and on behalf of the governments of Australia and PNG was a report directed to treaty questions and not a report directed to the questions of fact or issues in controversy in the s 61 application, notwithstanding that research discussed in the report may have been relevant in the sense described above.

No hearing on the merits 83 Where there has been no hearing on the merits, "a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order": Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Qin (Lai Qin) (1997) 186 CLR 622 at 624 per McHugh J. In 1993 Hill J, in Australian Securities Commission v Aust‑Home Investments Limited and Others (ASC v Aust‑Home) [1993] FCA 401; (1993) 44 FCR 194at 201 reviewed the authorities dealing with the determination of costs when a hearing does not proceed and identified the following principles. 84 First, where neither party desires to proceed with litigation, the Court should be ready to facilitate the conclusion of the proceedings by making a costs order: JT Stratford & Son Ltd v Lindley (No 2) (Stratford v Lindley) [1969] 1 WLR 1547; South East Queensland Electricity Board v Australian Telecommunications Commission (the SEQEB case) [1989] FCA 15. 85 Secondly, it will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne, to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford v Lindley. This will probably be the case where a trial on the merits will involve complex factual matters where credit could be an issue. 86 Thirdly, in determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them: the SEQEB case. 87 Fourthly, in a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371. 88 Fifthly, where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, although that case depended upon the particular wording of the statute under consideration. 89 In ASC v Berona Investments (1995) 18 ACSR 772 at 774, Cooper J observed that these five propositions are of assistance in "focusing attention upon some of the relevant circumstances which should be considered in the exercise of the discretion to award costs where proceedings do not proceed to a final hearing" [emphasis added]. However, his Honour noted that "they are not the only circumstances; nor are they intended to limit the discretion". In Lai Qin, McHugh J sought to identify the principle underlying some of the determinations, in these terms, at 624 and 625: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. … In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … [I]n some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in [the SEQEB case] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. [emphasis added] 90 At footnote 7, his Honour identified six cases commencing with ASC v Aust‑Home in support of the final paragraph quoted above. 91 In Gribbles Pathology Pty Ltd v Health Insurance Commission [1997] FCA 1414; (1997) 80 FCR 284 ("Gribbles v HIC"), Finkelstein J gave judgment on 10 December 1997 and addressed the five propositions identified by Hill J, without referring to the observations of McHugh J in Lai Qin, published on 28 February 1997 (in all probability because the authority was not cited to his Honour). At p 287, Finkelstein J said this: For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be a good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. [emphasis added] 92 Accordingly, in Gribbles v HIC, Finkelstein J seemed to take the view that special circumstances would need to be made out in order to support an exception from the general position that in the absence of a hearing on the merits, the order as to costs ought to be that each party bear its own costs. In Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334 at [16] and [17], Sackville J observed that Gribbles v HIC was "perhaps not easy to reconcile with" the "somewhat more flexible approach" in Lai Qin. Gillard J in Champagne View v Shearwater Resort Management (Champagne View v Shearwater) [2000] VSC 214 at [47] noted the formulation by Finkelstein J in Gribbles v HIC, quoted above, and said: I would not go so far as his Honour has, in stating that any other order other than each party bear its own costs can only be made 'in special circumstances'. Each case must depend upon its own circumstances. As a general proposition if there is no other material before the court other than the pleadings then it would be extremely difficult to make any order other than each party bear its own costs. 93 Hyder Consulting (Victoria) v CGU Insurance [2003] VSC 223 at [9]; Ringwood Plus v Commissioner of State Revenue [2004] VSC 494 at [19] and Smith v Airservices Australia [2005] FCA 997; (2005) 146 FCR 37 at [47] are decisions which reflect the view adopted by Gillard J in Champagne View v Shearwater: cf Yates Property Corporation v Boland [2000] FCA 1106; (2000) 179 ALR 664 at [7]. 94 In Boscaini Investments v Kensington City Corporation (Boscaini v Kensington) [1999] SASC 327, Debelle J at [21] and [22] agreed with Finkelstein J's formulation in Gribbles v HIC. Debelle J suggested that the third proposition identified by Hill J, as to whether the parties had acted reasonably, was of "limited assistance" and observed: The fact that a party has not conducted himself reasonably may disentitle him to costs. But, beyond that, the reasonableness of the conduct of the parties is not likely to assist in determining whether the applicant should recover his costs. The real question is whether the applicant had reasonable prospects of success. [emphasis added] 95 The observations of Debelle J in Boscaini v Kensington were applied in Draycott v Minister for Environment and Conservation [2006] SASC 384 at [9] (by Debelle J); Danielsen v Waldowski [2008] SASC 27 at [16] and Residential Property Conveyancers v Bagnato [2009] SASC 71 at [25] to [29]. The qualification in Boscaini v Kensington was rejected by Lander J in Consolidated Byrnes Holdings Ltd v Hardel Investments Pty Ltd [2009] FCA 399; (2009) 176 FCR 348 at [359]. Lander J addressed the question of costs by formulating three questions, all of which were directed to whether the parties had acted reasonably at relevant points along the continuum of the particular proceedings, and said at [359] and [360]: 359. The three questions I have posed mean that I disagree with respect with Debelle J's decision in [Boscaini v Kensington]. A party may behave so unreasonably in the bringing or conducting of proceedings so that an order for costs against that party is required in the interests of justice without ever deciding whether the party had a good cause of action. 360. Finkelstein J cast some doubt on the third principle referred to by Hill J. I do not need to decide whether I agree with the proviso mentioned by Finkelstein J because, in my opinion, at the very least this is one case where the issues are sufficiently clear, in the absence of a hearing, for orders for costs to be made. 96 In Kardas v Kalliakoudis [2008] FCA 1913 at [9], Finkelstein J revisited his views in Gribbles v HIC and said this: In [Gribbles v HIC] I suggested that 'in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances'. In [Champagne View v Shearwater] Gillard J suggested that my requirement for 'special circumstances' was too strict. He went on to say that '[e]ach case must depend upon its own circumstances'. I agree with that approach.

The approach to be adopted when no hearing on the merits occurs 97 The formulation adopted by Finkelstein J in Gribbles v HIC is, with respect, too strict and failed to accommodate properly the scope of the inquiry that may become relevant in the circumstances of the particular case as suggested in Lai Qin and Champagne View v Shearwater (and as ultimately adopted by Finkelstein J in Kardas v Kalliakoudis). Those circumstances might show that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. If the parties acted reasonably at the outset and continued to act reasonably in the conduct of the litigation until settlement or until "further prosecution became futile" (Lai Qin), the proper exercise of the cost discretion will usually mean that no order is made allocating the costs of the proceeding to one party or another particularly because the Court is deprived, in the absence of findings on the merits, of the primary factor informing where the cost burden should lie. 98 However, although both parties may have acted reasonably, a judge may conclude not merely that one party may have succeeded, but "feel confident" that one party was "almost certain" to have succeeded if the matter had been fully heard: Lai Qin. Reaching that level of confidence as to a state of apparent certainty, is "likely to be rare": Lai Qin. 99 The application (if any) of these principles needs to be considered within the framework of s 85A of the Act which starts with the proposition at s 85A(1) that each party must bear his or her own costs unless the Court determines otherwise and removes any ground of expectation that costs will follow the event, that is, the outcome upon a hearing on the merits. Section 85A(2) expressly directs the Court to the circumstance that unreasonable acts or omissions of a party may have caused another to incur costs in connection with a proceeding, as one matter that may give rise to an order allocating the burden of some or all of the costs to a particular party. The discretion under s 85A(1) is, however, not confined, and the matters to be taken into account are left to the Court as a discretion to be exercised judicially: Ward v Western Australian (No 2) (1999) 93 FCR 305 at [33] and [34]. 100 The difficulty however is that where the statute selects a starting point of allocating the burden of the costs, even though subject to an unconfined judicial discretion, findings of fact on the merits after a hearing would be critical in the exercise of a discretion in moving the parties from the statutory starting point to some other position, taking account of all the circumstances of the case. In the absence of the primary factor of findings of fact on the merits, the exercise of the discretion as to some other order displacing the statutory starting point in favour of another order, is made even more difficult. 101 That seems to me to reinforce the position that in the absence of a hearing on the merits, the Court, for the purposes of s 85A must be satisfied that the conduct of a party was so unreasonable that the other party should obtain the costs of the action. It may be that in the absence of a hearing, the material may show that a judge can be confident that one party was almost certain to have succeeded if the proceeding had been fully heard. However, in the context of s 85A that degree of confidence of apparent certainty is probably better understood as the symmetrical expression of unreasonableness. In other words, if one party is shown, on the material, to be so likely to succeed even without a hearing as to the merits, the conduct of the other party in contesting the proceeding is very likely to bear the description of conduct so unreasonable that the other party should obtain the costs of the action: Lai Qin. 102 All of these considerations lead me to the conclusion that no basis is demonstrated for making an order as to costs in relation to the TSRA's notice of motion to set aside the subpoena.

Compliance costs 103 The final question that arises is whether TSRA is entitled to an order that Mr Gamogab pay the reasonable costs and expenses incurred by the TSRA in complying with the subpoena. 104 Order 27, rule 11 of the Federal Court Rules provides: (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. 105 Much of the law establishing settled principle concerning the exercise of the discretion to make such an order is based on the earlier form of Order 27, rule 11 (Order 27, rule 4A). Order 27, rule 4A applied only to non‑parties: Australian Prudential Regulation Authority v Rural and General Insurance Limited (supra). An addressee of a subpoena who is a non‑party was entitled to an order under Order 27, rule 4A for the payment of solicitor and client costs reasonably incurred in respect of the subpoena: Chapman v Luminis (supra). Order 27, rule 11 is not limited, in its operation, to non‑parties. 106 Therefore, Order 27, rule 11 comprehends the possibility of an order that one party to a proceeding that has been put to reasonable expenses or that has reasonably incurred losses might seek the recovery of those expenses or losses from the issuing party. The TSRA says that it is a party to the s 61 application only in a technical sense and ought to be considered a non‑party for the purposes of invoking the principle that a non‑party is entitled to its solicitor and client expenses reasonably incurred in relation to the subpoena. 107 A non‑party is in a different position to that of a party for the obvious reason that a non‑party has no interest to advance, protect or assist, in the controversy. Therefore, a non‑party, put to the trouble (normally measured in costs and expenses) of producing a document as a stranger to the litigation so as to forensically aid a party to the controversy, is entitled to look to the issuing party for the costs of seeking advice as to his or her obligations under the subpoena and the steps the addressee must take in discharging those obligations. Those costs conventionally extend to responding to the Court to say that he or she ought to be excused from producing the document for a particular reason. 108 In principle, there is no reason why a stranger to the litigation should suffer reasonable loss or expense in being drawn into a controversy in which he or she has no interest other than the community or public interest of ensuring that disputes are resolved in the interests of justice between the parties by reference to the documents relevant to the issues to be determined. 109 A party is in a different position because each party is an engaged participant in the controversy either entirely or by issues and the production of a document relevant to a matter in issue, by subpoena, is often a necessary part of properly engaging in the resolution of the controversy, although a document relevant to an issue in the proceeding would normally be the subject of disclosure procedures. 110 Nevertheless, Order 27, rule 11 contemplates that a party to the proceeding put to reasonable loss or expense incurred in complying with the subpoena might look to the issuing party by seeking an appropriate order. 111 For the reasons at [80] the TSRA ought not to be considered in any orthodox sense as a non‑party for the purposes of the s 61 proceeding. Mr Gamogab understood the matters described at [77] to [79] and [82] of these reasons which I will not repeat. Upon service of the subpoena it became necessary for the TSRA to examine the scope of its obligations under the subpoena compelling production of the report commissioned for treaty purposes and whether, prudently, steps ought to be taken to seek to either limit the scope of production and use of the report or to determine whether the report ought not to be disclosed, for particular reasons. 112 It was not until 12 January 2009 that the TSRA knew that the Commonwealth would not assert a claim of public interest immunity in relation to the document. Once the Commonwealth abandoned a claim of public interest immunity, it is difficult to identify the basis upon which the TSRA as the facilitating commissioning party might seek to assert that claim. The TSRA continued to take the view that, in any event, the report was not relevant to the issues in controversy. 113 Therefore, having regard to all of the circumstances and particularly those specific matters addressed at [77] to [82] of these reasons, it seems to me that the TSRA acted reasonably in taking steps to determine its compliance position and its obligations in relation to the report especially having regard to the circumstances in which it was commissioned and the purpose for which it was obtained. The question of public interest immunity became a matter of particular focus having regard to those circumstances. 114 The particular steps giving rise to expense within Order 27, rule 11 included, firstly, the TSRA obtaining legal advice as to its rights and obligations under the subpoena. Secondly, conferring with the Commonwealth to determine its position in relation to the subpoena and its continuing dialogue with the government of PNG. Thirdly, conferring with Mr Gamogab's solicitors. Fourthly, producing the report to the Court and appearing before Finn J in October 2008 to communicate the TSRA's view of its obligations under the subpoena to the Court. Fifthly, preparing a bill in taxable form and sixthly, attending to taxation of the bill in due course in the absence of any agreement in relation to the quantum of the costs. 115 It will be apparent from the classes of expense identified in [114] that almost all of those expenses involve expenses payable to legal advisers in connection with advice; engaging with the Commonwealth; and, appearing before the Court. Those expenses are, in fact, legal costs the TSRA necessarily incurred. They are therefore costs of and incidental to the subpoena having been issued and served by Mr Gamogab. Prima facie they fall within s 85A of the Native Title Act and therefore it might be said that unless the Court can be satisfied that Mr Gamogab acted unreasonably in seeking leave to issue the subpoena directed to the report and serving it on the TSRA, no order ought to be made touching upon those costs. 116 However, if that class of expense properly falls within the characterisation of costs for the purposes of s 85A(1), the exercise of the discretion under that section takes into account all of the circumstances relevant to the question: Ward v Western Australia (No 2) (supra). The discretion is unconstrained: Ward. Having regard to the matters described at [77] to [82], it seems to me appropriate to make an order "otherwise" for the purposes of s 85A(1) on the footing that the TSRA was necessarily required by the subpoena to examine its obligations in relation to the document arising out of the circumstances concerning the treaty and the treaty issues under negotiation between Australia and PNG. Those matters raised quite separate issues of sovereign immunity and thus public interest immunity and the TSRA ought not to be put to expense (including legal expenses) in addressing that matter at the hands of the issuing party. 117 If the identified class of expenses [114] does not fall within the characterisation of costs for the purposes of s 85A(1) of the Act, the identified class of expenses will fall within Order 27, rule 11 of the Federal Court Rules.

Orders 118 Accordingly, an order will be made excusing the TSRA and its General Manager, Mr Wayne See Kee, from further compliance with the subpoena. 119 A further order will be made that the report of Dr Murphy provided to the Court by the TSRA on 24 October 2008 shall be made available for collection by the TSRA from the Registry of the Federal Court of Australia. 120 The Court will order that Mr Gamogab pay to the TSRA the reasonable expenses of the TSRA incurred in complying with the subpoena, being the class of expenses described in para [114]. 121 The TSRA's notice of motion of 3 November 2008 is dismissed with no order as to costs. I certify that the preceding one hundred and twenty‑one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.