Birrigan Gargle Aboriginal Land Council -V- Minister Administering the Crown Lands Act [1999] NSWLEC 123

Land and Environment Court (NSW)|1999-05-28|Before: Bignold J, Mr J, McHugh J

The Applicant, by Notice of Motion filed 20 April 1999, seeks an order that the Respondent pay its costs in these class 3 proceedings which were concluded by the following orders made on 25 February 1999.

Pursuant to s36(7) of the Aboriginal Land Rights Act 1983 , the Respondent is to transfer to the Applicant the claimed lands as soon as practicable after the expiry of 28 days from the date of these Orders.

The exhibits be returned after 28 days if there be no appeal lodged.

My reasons for judgment in the proceedings were published on 18 February 1999 and for the purpose of resolving the present Motion which is opposed by the Respondent, it is necessary to have regard to those reasons in their entirety.

The Applicant's claim for a costs order in its favour was founded on two grounds -

(ii.) the Respondent's conduct of the litigation qualified as "special or exceptional" circumstances justifying the costs order sought.

The Respondent resisted both these foundations for the Applicant's claim, contending (i) that previous decisions of this Court had expressly not favoured the conventional " costs follow the event " approach in Aboriginal land claims brought to the Court pursuant to s36(7) of the Aboriginal Land Rights Act 1983 (the Land Rights Act ) and (ii) there were no special or exceptional circumstances in the Respondent's conduct of his case to justify awarding costs against the Respondent.

The Court is vested with a very broad discretion in relation to costs by s69 of the Land and Environment Court Act 1979 (the LEC Act) subsection (2) providing as follows: Subject to the rules and subject to any other Act: costs are in the discretion of the Court; and the Court may determine by whom and to what extent costs are to be paid.

This statutory provision is substantially the same as that contained in s76(1)(a) and (b) of the Supreme Court Act 1970 , and both provisions can be traced back to Order 55 of the Rules of Court contained in the Supreme Court of Judicature Act 1875 (UK): see Oshlack v Richmond River Council (1998) 193 CLR 72 at 95/96 per McHugh J.

In Oshlack, the High Court divided in its opinion on the factors that were relevant to the judicial exercise of the statutory costs power and in particular, upon the questions (i) whether the characterisation of the relevant proceedings as "public interest litigation" was a relevant factor, and (ii) whether the "costs follow the event" approach had become so universal as to supplant the exercise of discretion.

The majority judgments were given by the Gaudron and Gummow JJ (jointly) and Kirby J. The minority judgments were given by Brennan CJ and McHugh J.

Concerning the question of whether the "public interest" nature of the litigation was a relevant factor in the exercise of the Court's costs power, Brennan CJ held (at 75) that "the fact that the appellant brought the present proceedings in the public interest for the protection of endangered fauna does not provide a sufficient reason in itself for refusing the successful respondent its costs in the present case".

…the fact that the proceedings can be characterised as public interest litigation is irrelevant to the question whether the Court should depart from the usual order the costs follow the event.

The joint judgment of Gaudron and Gummow JJ (at 84) thought the characterisation of litigation as "p ublic interest litigation " was a " nebulous concept unless given further content of a legally normative nature ". They also held that it also tended to distract attention from the legal issue which was at stake in the appeal, namely " whether the subject matter, the scope and purpose of s69 are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be ` definitely extraneous to any objects the legislature could have had in view in enacting s69 '. Their Honour's negative answer to this question is given in the following passage at 91:

Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that `something more' than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs (Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605). Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case.

Kirby J concluded (at 127) that it was open to Stein J to conclude that a departure from the ordinary compensatory rule for costs was appropriate given his classification of the proceedings as having been brought in the " public interest " (being a " public interest " that was permitted and facilitated by s123 of the Environmental Planning and Assessment Act 1979 ).

Earlier (at 124), Kirby J had concluded that although it was difficult to define with precision, what is meant by "public interest litigation" a series of cases in Australia, England, New Zealand and Canada had demonstrated a discrete approach taken to costs in circumstances where the courts had concluded that a litigant had properly brought proceedings to advance a legitimate public interest, had contributed to the proper understanding of the law in question and had involved no private gain.

The other question upon which the High Court decided in Oshlack, namely the place in the exercise of discretion of the "costs follow the event" approach, has greater relevance to the present case. Here, the majority held:

(T)here is no absolute rule with respect to the exercise of the power conferred by a provision such as s69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party… at 88 per Gaudron and Gumow JJ,

But the compensatory principle cannot be treated as an absolute principle: at 121 per Kirby J

Earlier, Gaudron and Gummow JJ had held at 86 and 87:

At bottom in the present case is the question whether rules of practice with respect to similarly expressed provisions in legislation applicable in other species of litigation have so hardened `that they look like rules of law' ( McDermott v The King (1948) 76 CLR 501 at 514.), which render irrelevant to the exercise of the discretion conferred by s 69 those considerations to which the Council successfully objected in the Court of Appeal.

Implicit in the submissions for the Council is the proposition that, so strongly determinative of a discretion conferred in broad terms by a provision such as s 69 of the Court Act are the considerations (i) that the court must determine the matter from the perspective of the successful party, (ii) that the successful party ordinarily should be compensated by the unsuccessful party for the expense of the litigation, and (iii) that the successful party will be deprived of costs only by disentitling conduct, that they are to be displaced only by specific legislative provision. Examples of such legislation would include that construed in Gray v Lord Ashburton ([1917] AC 26.) and Tekmat Investments Pty Ltd v Ward ((1988) 65 LGRA 444) so as to permit an order which burdened a successful party with the costs of others. The Council's proposition should not be accepted.

The minority judgment of McHugh J (concurred in by the Chief Justice) analyses (at 96 and 97) the jurisprudential basis for the important principle commonly referred to as the " usual order as to costs " which his Honour expounds in the following passage at 97:

The expression the `usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party ( Latoudis (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.). If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

Ultimately, and with respect, I would understand the different judgments in Oshlack to diverge on the question of the status or place of the " costs follow the event " approach to the exercise of judicial discretion on costs, as a consequence of their divergence on the question of the relevance in the exercise of discretion of the trial judge's classification of the proceedings as involving " public interest litigation ".

The significance of such an understanding of the different judgments in Oshlack is that in a case such as the present which involves no element of "public interest litigation", the exercise of the Court's costs power will ordinarily give effect to "the usual costs order" or the "compensatory principle", namely, that subject to certain limited exceptions, the successful party to litigation is entitled to an award of costs in its favour.

Obviously, Oshlack must now be regarded as the definitive exposition of the nature of the Court's discretion as to costs conferred by s69 of the LEC Act, and accordingly, it provides the foundation for the determination of the present disputed Motion for costs.

This has immediate bearing upon the three earlier decisions of this Court (which were cited in argument) in respect of costs in proceedings involving aboriginal land claims in support of the Respondent's submission that this Court has expressly departed from the "costs follow the event" approach.

The three earlier decisions of this Court are (i) Narromine Local Aboriginal Land Council v. Minister Administering the Crown Lands Act (1993) 79 LGERA 430 per Stein J; (ii) Birrigian Gargle Local Aboriginal Land Council v. Minister Administering the Crown Lands Act (1993) 80 LGERA 389 per Bannon J; and (iii) Birrigan Gargle Local Aboriginal Lands Act (No 2) (1993) 81 LGERA 137 per Pearlman CJ.

In Narromine, Stein J had to determine a claim to costs made by the Minister following the land council's discontinuance of its appeal pursuant to s36(7) of the Land Rights Act.

His Honour took the opportunity to express his view as to "the Court's position in policy terms on the appropriateness of costs". That view appears in the following passage at 433/434:

In my view the nature of land rights appeals under the Aboriginal Land Rights Act ; the express beneficial and remedial nature evinced by the recitals to the Act; the nature of the rights inherent in s 36 which, according to the Court of Appeal, comprise inchoate property rights, see Hope JA in New South Wales Aboriginal Land Council v Minister (Winbar claim No 3)) (1988 14 NSWLR 685 at 696 ; make it appropriate for the Court to form the opinion that, in the ordinary course of such appeals, no orders for costs ought be made whatever the result. That is, whether the result is that the claim be granted in whole or in part or refused. This situation should pertain in the absence of exceptional or special circumstances which may concern the conduct of a party to the litigation.

In Birrigan Gargle Bannon J had to consider the land council's claim to costs in circumstances where the land claims had been granted by the Court making consent orders.

His Honour at 391 expressed the opinion that in exercising its discretion on costs, the Court should adopt the ordinary rule of costs following the event, noting that he had, with respect to the judgment of Stein J in Narromine "reached a different view". (In the result, his Honour made no such order because he held that the consent orders having been perfected without reserving the question of costs he had no jurisdiction to make any costs order).

Earlier at 390, Bannon J had made the following observation:

In previous cases before me, the Minister when successful, has not pressed for his costs against an Aboriginal Land Council. No doubt, bearing in mind the preamble to the Act, and the remedial purpose of the legislation, this has been an appropriate attitude in other cases. There may be an element of ` heads I win, tails you lose ' in the applicant's request for costs against the Minister, but this should not deflect the Court from giving an appropriate response.

In Birrigan Gargle (No. 2) Pearlman CJ reconsidered the land council's claim to costs that had been earlier considered by Bannon J on the basis that his Honour had been mistaken in thinking that the consent orders had not reserved the question of costs. In doing so, her Honour noted the difference of opinion between Stein J in Narromine and Bannon J in the instant case and expressed her concurrence with the opinion of Stein J holding (at 141):

…that the proper principle to be applied by this Court in the exercise of its discretion as to an order for costs in proceedings in class 3 of its jurisdiction in relation to claims under the (Aboriginal Land Rights ) Act, ought to be that no order should be made as to costs, unless the circumstances are exceptional.

In so concluding, the Chief Judge had propounded the following two reasons for preferring the opinion of Stein J:

(i.) the beneficial purpose of the Act might be diminished if land councils were exposed to the risk of an award of costs against them if their claims failed; and

(ii.) the similarity, in principle, between a land claim appeal under s36(7) of the Land Rights Act and a planning appeal and a building appeal within classes 1 and 2 of the Court's jurisdiction in respect of which latter appeals, the Court had issued its Practice Direction against awarding costs in such proceedings, save for exceptional circumstances.

I should note that the principle enunciated by the Chief Judge had not been in issue between the parties to that litigation: 141.

I do not think that it is a legitimate exercise to translate these earlier decisions of this Court into a general or settled practice or guideline governing the exercise of the Court's discretion on costs in respect of appeals pursuant to s36(7) of the Land Rights Act.

Firstly, the decisions did not, in terms, purport to establish such a practice or guideline. Secondly, when the Court amended its Practice Direction in 1996 (some two years after the relevant decisions of Stein J and Pearlman CJ) to extend its established practice of not awarding costs in class 1 and 2 proceedings to certain types of proceedings in class 3 of its jurisdiction, it did not include within the extended class, appeals pursuant to s36(7) of the Land Rights Act (which appeals fall within class 3 jurisdiction).

The 1996 Practice Direction relevantly provided:

The practice of the Court is that no order for costs is made in valuation appeals, farmland rating appeals (and other rating appeals), and subdivision appeals in class 3 of the Court's jurisdiction, unless the circumstances are exceptional.

The consequence of there being no settled practice or guideline for the exercise of the Court's costs discretion in relation to appeals pursuant to s36(7) of the Lands Rights Act is that the Court's costs power, and the basis for its exercise, in a case such as the present, are to be understood in the manner expounded by the High Court in Oshlack . This means that the Court's earlier decisions are to be understood as decisions on their own facts, revealing the manner in which the Court's costs discretion was exercised in those particular cases, but not governing the manner in which the Court should exercise its discretion in the present case. Here, (unlike Narromine where the appeal was discontinued and Birrigan Gargle where the case settled) it is to be recalled the proceedings were fully litigated (including a four day hearing) and the Applicant was entirely successful in the result.

For completeness, I should mention two decisions of the Court of Appeal that have some relevance to the question here under consideration.

Firstly, in proceedings involving an appeal under s36(7) of the Land Rights Act, the Court in Minister Administering the Crown Lands Act v The NSW Aboriginal Land Council (No 2) (1997) 42 NSWLR 641, in allowing the Minister's appeal from the decision of this Court, ordered the claimant land council to pay the Minister's costs of the appeal and the costs of the hearings in this Court.

Secondly, in Council of the City of Sydney v Garbett Pty Limited (unreported 1 February 1996), a case involving a claim to rate exemption under the Local Government Act 1919, the Court ordered the unsuccessful party to pay the successful party's costs, both in respect of the proceedings in the Court of Appeal and of the proceedings in this Court. The case had been remitted to the Court of Appeal following the Council's successful appeal to the High Court of Australia (69 ALJR 616).

Upon the remitter, the Court of Appeal, in considering the question whether the costs order it proposed to make in favour of the ultimately successful party should include the costs of the proceedings in this Court said (at 1/2 ):

The only matter of substance eventually not agreed was whether this court should make orders for costs of the proceedings in the Land and Environment Court, and if so, what orders.

The saving of time and expense led this court to think it should make the orders.

The contest then remaining was whether the costs in question should follow what, as the successive appeals eventually showed, should have been the event in the Land & Environment Court, or whether no order for costs of those proceedings should be made. The latter orders were said to be in accord with the practice of the Land & Environment Court. However, so far as we are aware, the only practice of this kind which is in any formal sense established is confined to planning and building appeals: cf Maclean Shire Council v Nungera Co-operative Society Ltd (1994) 84 LGERA 139 (CA).

In cases such as the present involving complex questions of law, commercial occupiers, and substantial amounts, heard by a Judge of the Land & Environment Court, we see no reason why the ordinary rule as to costs should not apply. This is well established in other taxation litigation in federal and state courts.

We were informed however that many rating appeals in the Court, involving for example domestic occupiers and modest amounts, are heard by assessors of the Court, and that in cases of this kind the practice has been to make no order as to costs. The present cases are manifestly not of this kind. Our decision is not intended to affect any practice of the Court in rating appeals heard by assessors as administrative appeals on the models of the former Taxation Boards of Review and Federal and State Administrative Appeals Tribunals. No such practice is before us in these appeals.

We are therefore prepared to make orders in the form submitted in draft on behalf of the Council which have been prepared on the footing of what we think is the appropriate approach to costs orders in the Land & Environment Court in cases of this kind.

It will be appreciated that in both cases (which emanated from proceedings in class 3 of this Court's jurisdiction) the Court of Appeal exercised its costs power in favour of the successful parties and the costs ordered included the costs in this Court.

C. HOW SHOULD THE COSTS DISCRETION BE EXERCISED IN THE PRESENT CASE?

In my judgment, there is no reason why, in the present case, the Court should not apply the compensatory principle in exercising its costs discretion, by awarding costs in favour of the Applicant, as the successful party in the litigation.

The outcome of the litigation inevitably means that the Minister had "wrongly refused" the Applicant's land claims: see New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act (1988) 14 NSWLR 685 at 696 per Hope JA in giving the judgment of the Court of Appeal.

This conclusion, in the context of an adjudicated appeal pursuant to s36(7) of the Land Rights Act, involves no more than saying that the Minister has not discharged the statutory onus imposed upon him by s36(7) of satisfying the Court that the claimed lands were not claimable Crown lands, (although the Minister had himself been satisfied as a result of his investigation of the land claims, that the lands were not relevantly claimable Crown lands).

To vindicate its land claims, the Applicant has had to incur legal costs in prosecuting its statutory right of appeal.

In these circumstances, the compensatory principle for an award of costs appears to me to be inevitably and eminently, the just and appropriate approach or principle to adopt in exercising the Court's costs discretion.

I appreciate that the adoption of such an approach may be thought to carry the ordinary inference that such an approach is appropriate whichever party is successful in litigation of the present kind, with the consequence that if the claimant land council were to fail in its appeal, it would be exposed to the risk of a costs order.

For my own part, I do not think it should be necessarily assumed that if the Court exercises its costs discretion in favour of a claimant land council which succeeds in its appeal, it will also exercise the same discretion against the claimant where its appeal fails. My reason for sounding a caution against making that assumption is founded upon the nature of the respective rights and obligations of the parties to a land claim created by the Land Rights Act.

These rights and obligations are, in my respectful opinion, very clearly expounded in the judgment of Hope JA that I have earlier cited.

Concerning "the rights" of the claimant land council, Hope JA after posing the question at 693 as to "the nature of the right which the Land Council had after it had made its claim,, when its claim was being investigated by the Minister and when it lodged its appeal to the Land and Environment Court" provided the following answer at 694:

On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. In this regard the legislation is quite different from that considered by the High Court in R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 where under the relevant Land Rights Act, as Gibbs CJ pointed out (at 373), an application, to be successful, " must attract the favourable exercise of three independent discretions - those of the Commissioner, the Minister, and the Governor-General….

Concerning " the obligations of the Minister ", Hope JA stated the following at pp 691/692:

What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter, he was simply required to look at a state of facts existing at the date of the claim.

The nature of his inquiry was not affected by the circumstance that the resolution of the question might be difficult or might involve questions of judgment. Thus the nature of the question whether the land is likely to be needed for an essential public purpose as at the date of the claim is a question of fact, even though different persons may arrive at different conclusions. This is in no way different to a decision which a court may have to make as to whether a defendant in a action for damages was negligent, or whether an applicant in a Workers' Compensation application has suffered an injury arising out of his employment. If the conditions were in truth satisfied at the time the claim was made the investigation of them by the Minister and his satisfaction in respect of them would be no different in substance from an investigation by a court as to whether facts existed at some prior date giving rise to a right in a party making a claim to that right before it. The Minister might make a wrong decision, but no question of discretion would be involved.

However that is only the first step provided by the section. If the Minister refuses to grant the claim, there is an appeal to the Land and Environment Court which shall hear and determine' the appeal and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands… be transferred to the claimant…'. The function of the court again is simply to determine whether the conditions in the definition of `claimable Crown lands' are satisfied, again as at the date the claim was made, the onus being on the Minister to prove that they were not so satisfied.

Given these respective rights (of the land Council) and obligations (of the Minister) created by the Land Rights Act , it is apparent that the Legislature has deliberately provided a right of appeal to an Aboriginal Land Council claimant so that the Minister's findings, based upon his investigation of the land claim may be tested or challenged on appeal in circumstances where the Legislature has placed the onus of proof upon the Minister. An allied feature of the Land Rights Act should be noted at this point, namely the fact that the right of appeal is created only after the Minister has refused the land claim and in this respect, the Land Council must simply await that decision. (In the present case, the waiting period was 12 years).

In these special circumstances, (which include the fact that the Legislature has not provided in the Land Rights Act any special provision relating to the costs of proceedings in exercise of the statutory right of appeal) I do not think it can be assumed that if the Minister, on the hearing of an appeal under s36(7) of the Land Rights Act, satisfies the Court that the lands are not relevantly claimable Crown lands, that the Court would ordinarily exercise its costs power by ordering the unsuccessful claimant land council to pay the Minister's costs. Not only does that assumption simply assume that the Minister would apply for costs in such circumstances (when for good policy reasons, he may not), but it assumes that the Court, faced with such an assumed application would, in exercising its costs discretion, simply apply the "costs follow the event" approach. In my opinion, neither of the assumptions should be taken as foregone conclusions. In particular, the vindication of the second assumption encounters the very strong contrary indication provided by the Land Rights Act delineating the Minister's twofold obligation to (i) investigate the facts relevant to a land claim; and (ii) to satisfy the Court, on an appeal pursuant to s36(7), that the conclusion reached by the Minister as a result of that investigation was the correct conclusion on the facts.

Moreover, in respect of the costs incurred in the discharge of the Minister's obligation to satisfy the Court in any appeal proceedings, it is reasonable to assume that the costs will have already been substantially incurred in the discharge of the Minister's primary obligation to investigate the facts following the lodgment of a land claim and it is reasonable to assume that the Legislature did not contemplate the recovery of these costs from an Aboriginal Land Council in the event of the Minister's decision being confirmed by the Court, on appeal. The costs of the Minister's statutory investigation are obviously costs of administering the Land Rights Act, and it is but a short step to likewise regard the Minister's costs incurred in an appeal under s36(7) of the Act.

Again, having regard to the nature of the Minister's obligations under the Land Rights Act, it is reasonable to assume that the case he seeks to establish before the Court will be the same case that led him to conclude, as a result of his statutory investigation, that the land is not relevantly claimable Crown land.

53 If in a given case there were to emerge a significant discrepancy between the case made out by the Minister on an appeal and the results of the Minister's statutory investigation of the facts relevant to a land claim, a very serious question would arise as to the legitimacy of the Minister's claim to costs in the event of the appeal failing (assuming the existence of such a claim).

What I have said concerning the obligations and rights created by the Land Rights Act entirely satisfies me that there is no inherent contradictoriness involved in saying that a successful appeal under s36(7) of the Land Rights Act will ordinarily result in an order for costs being made in favour of the land council whereas an unsuccessful appeal will ordinarily not result in an order being made against the land Council.

In so concluding, I am not to be taken to be saying that such consequences as to costs will invariably apply to all cases. In particular, I am not to be taken as saying that a land council would never be subjected to a costs order being made against it. Each case must be treated on its own facts. Cases may arise where the Court concludes that the claimant's appeal was hopeless or "without proper justification". (I have adopted the last expression from s112(3) of the Workplace Injury Management and Workers Compensation Act 1998 which forbids the Compensation Court from ordering the payment of costs by a person claiming compensation "unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification".)

For all the foregoing reasons, I am of the opinion, having regard to the Applicant's entire success in the proceedings, and having regard to the nature of the rights in respect of land claims conferred upon the Applicant by the Land Rights Act and to the obligations imposed upon the Minister by that Act, that it is appropriate to exercise the Court's costs power by ordering the Respondent to pay the Applicant's costs of the proceedings.

Had it been necessary to adjudicate the disputed costs claim on the basis of what the earlier decisions of the Court had established (which was the Respondent's principal argument) I think that there were special features of the hearing of the case that would have justified the making of a costs order in favour of the Applicant. Briefly stated, those features were as follows:-

(i.) the Minister's belated claim based upon s25A of the Crown lands Consolidation Act that the lands were not relevantly " Crown lands ";

(ii.) the Minister's abandonment of reliance he had previously placed upon the views of the National Parks and Wildlife Service concerning the need for the majority of the claimed lands for nature conservation purposes; and

(iii.) the Minister's belated claim that some of the claimed land was relevantly "lawfully used or occupied" for beach access purposes.

None of these features of the Minister's conduct of his case, on appeal, had been reflected in the Minister's decision refusing the land claims. Essentially, the Minister conducted his case upon different grounds from those that had led him, as a result of his investigation of the land claims, to conclude that the lands were not relevantly claimable Crown lands.

Although no point was taken (or perhaps could have been taken) that the Minister was not entitled to conduct his case upon a different basis from that yielded by his statutory investigation of the Applicant's land claims, just as such conduct, as I have earlier suggested, might well be sufficient to disentitle the Minister to a costs order, if sought by him in the event of the Minister satisfying the Court that the lands were not relevantly claimable Crown Lands, so in my opinion, should such conduct be properly regarded as constituting "special circumstances" within the narrower formulation of the Court's approach to the exercise of its costs power that was expressed in the Court's earlier decisions.

However, for the reasons given, I would prefer to base my decision in the present case upon (i) the view of the Court's costs power and (ii) established principles for the exercise of that power as expounded in Oshlack.

For all of the foregoing reasons, I order the Respondent to pay the Applicant's costs of the proceedings in the sum agreed, or failing agreement, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Land and Environment Court of New South Wales CITATION: Birrigan Gargle Aboriginal Land Council -V- Minister Administering the Crown Lands Act [1999] NSWLEC 123

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