Coombes v Registrar of Aboriginal Corporations

REASONS FOR JUDGMENT 1 I delivered judgment in this matter on 7 March 2008: Coombes v Registrar of Aboriginal Corporations [2008] FCA 321. I reserved the question of costs, and gave the parties the opportunity to exchange written submissions on costs. 2 Both the first and second respondents seek costs of the proceedings to date on an indemnity basis against the applicants, relying upon the principles discussed in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 223-234 and alternatively party and party costs. The applicants contend that no order as to costs should be made at all in the circumstances.

3 In the proceeding the applicants unsuccessfully sought orders requiring the second respondent, the Administrator of the Nyangatjatjara Aboriginal Corporation (NAC) under the Aboriginal Councils and Associations Act 1976 (Cth) (the Act), to take certain steps in the administration relating to the preparation of a Register of Members, to the calling of certain general meetings, and to the preparation of certain reports with a view to having the NAC return to the control of its members. They also unsuccessfully sought orders requiring the first respondent to require the second respondent to establish a current Register of Members of the NAC and for declaratory orders as to the proper operation of the Act. 4 In my view the application for indemnity costs should be refused. 5 I have formed that view notwithstanding that the applicants' initial points of claim of 12 January 2007 were somewhat loosely expressed, and that the nature of the relief sought was substantially re-formulated at the commencement of the hearing. I do not consider that those matters significantly increased the preparatory work carried out by the respondents, or caused them to incur costs which they would not otherwise have incurred. The re-formulated relief claimed did not cause the respondents to acknowledge any matters which they had previously disputed or, on the evidence, cause them to re-trace or extend their preparation for the case. 6 The principal submission of the respondents was that the claim was bound to fail, partly because certain of the orders sought were inconsistent with authority and partly because the declaratory orders sought related to future events and simply re-stated statutory obligations. The submissions of the first respondent accept, or appear to accept, that the applicants had a genuine concern about the progress of the administration of the NAC by the second respondent. The second respondent was appointed on 26 April 2006 and, at least from the applicants' perspective, the things which they had expected the second respondent to attend to had not apparently been progressed. During the hearing the second respondent explained the extent of his activities following his appointment and the reasons why a Register of Members had not, by then, been completed. The evidence also showed a sincere concern on the part of the applicants about the consequence of the on-going administration on the operation of the Nyangatjatjara Aboriginal College (the College), an activity of the NAC. Those matters do not of themselves expose an unarguable case, even in the light of correspondence before the proceedings which pointed out the first respondent's position that, in her view, the proceedings were misconceived. 7 Although I concluded, for the reasons I expressed, that the applicants' claims should not succeed, that was a view reached after hearing all of the evidence. By way of an extreme example, had there been total inactivity by the second respondent appointed under the Act, and had the first respondent been indifferent to that circumstance, the Court may have concluded that some error of law underlay that inactivity. The point is that the conclusions generally depended upon findings made on the evidence. There were some orders sought which I found simply not to be available as a matter of law, but on those matters the hearing including submissions was relatively brief in the context of the entire hearing. I do not therefore consider, viewed overall, that the applicants' claims were so unreasonable or so unlikely to succeed, or that they conducted their case in such a manner, that an award of indemnity costs should be made. Compare Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 at 401. 8 The applicants identified a number of matters relevant to whether the normal order as to costs should apply. It is necessary to identify special circumstances which would lead to departure from the general rule that costs should follow the event: Ritter v Godfrey [1920] 2 KB 47 (Ritter), at least at a practical level. 9 The first was that the administration of the NAC was initiated by the first respondent, and then the applicants were in effect obliged to institute proceedings because the respondents denied them information about the progress of the administration. The applicants were the Anangu, ie representatives of the three Aboriginal Communities directly affected by the appointment of the second respondent. As the evidence in the proceedings showed, there was a real concern on the part of the first respondent about the maintenance of a Register of Members by the Governing Committee of the NAC before the appointment of an Administrator and a real concern about how the then members of the Governing Committee came to hold their offices (as well as about other matters concerning the administration of the NAC). However, at a practical level, I do not think there is any doubt that at least informally the applicants were all, or almost all, members of the Governing Committee (at least a de facto governing committee) of the NAC at the time of the appointment. They were, and remain, genuinely and properly interested in the well being of the NAC on an ongoing basis and the effect of the administration upon its affairs. The NAC and its subsidiary or associated activities was a very substantial enterprise. That proper interest (in the practical sense) arose from the applicants being representatives of the Anangu as well as their previous status. It is also apparent from the evidence that the applicants, through their solicitors, invited the respondents to keep them informed as to the progress of the administration but that their requests for information were largely unsatisfied. That circumstance must be seen in context. Their request for information was, on occasions, more than that: assertions that the second respondent, and later the first respondent, should do things which they allegedly had not done; and that the second respondent was doing things detrimental to the interests of NAC. That may explain, in large measure, why the applicants' requests for information were not satisfied. In addition, the respondents took the view that their asserted position as officers of the NAC was in doubt for the reasons already given. Nevertheless, no other persons more obviously than the applicants were identified as persons from the Anangu who might have been kept informed of the progress of the administration, and I think it was appropriate that, by some means, the Anangu should have been kept generally informed as to its progress. It is therefore understandable that the applicants were "invited" (to use the word used by them in submissions) to commence proceedings by the respondent. I shall return to this feature later in these reasons. 10 The applicants also contended that any order for costs against them, given that they were seeking to involve themselves in the administration of the NAC and in the light of its very significant interest to their communities, would "send a message to Aboriginal persons not to involve themselves in such matters". I place little weight on that factor. An applicant has a perceived interest in the matters raised in the particular proceeding in every circumstance, and not uncommonly that interest is shared with others. Sometimes, for that reason, the applicant is supported by others interested, including support as to the costs of the proceeding. But it is no principle of law that the fact that the proceedings are brought by one person, inter alia, for the indirect benefit of others or because there are others interested in the outcome means that that applicant should not be obliged to pay the respondents' costs if the proceedings are unsuccessful. Nor is there any principle, so far as I am aware, that the exercise of the costs discretion should be exercised differently because the applicants are indigenous persons. I do not think the applicants meant to submit that. 11 There are well developed guidelines for the exercise of the costs discretion in what are called "test cases" (where one case will decide an issue which is likely to arise in many other cases) or in what is called public interest litigation. This was not such a case. 12 Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter. 13 In Geeveekay, even though the appeal involved an important question of law, the resolution of which was in the public interest, namely whether the terms of certain contracts for the sale of land were credit contracts, regulated by the Consumer Credit Code (Vic), the proceeding was of a private nature. In effect, the applicant in Geeveekay brought the appeal in the pursuit of its own commercial interests, and there was no sufficient reason to distinguish it from other private litigation between a member of the public and a government agency. The present case, in my view, falls within the latter category. 14 Finally, the applicants contended that, because the costs of the first respondent could be recovered from the property of the NAC: see s 74 of the Act, including the costs of the second respondent incurred as Administrator upon the appointment of the second respondent, that is a more appropriate avenue for the respondents to be protected as to the costs of the proceedings than an order against the applicants. They rely on the right under s 74, but do not want it exercised. They submit that the Registrar should not exercise those powers because (they contend) the exercise of them would render the NAC insolvent and lead it to being wound up. I do not know enough about the financial circumstances of the NAC, or the progress of the administration, to know whether that is the case. There is some evidence to suggest that the NAC through various business activities conducted through entities in which it had an involvement and that it had a very substantial range of assets and perhaps liabilities. I do not think that matter provides a basis for not applying the usual rule as to costs. 15 One matter upon which the applicants sought to make submissions was based upon proposed affidavit evidence relating to the question of costs. That evidence was to show that the second respondent, despite evidence given at the hearing, had not progressed the administration with the speed at which he had said he would, and that the outcome of the administration has been regarded by the Anangu as unsatisfactory, even though it is ongoing. The respondents opposed the application to rely upon that affidavit evidence on two grounds. Firstly, that it was irrelevant to the exercise of the costs discretion in any event. And secondly, that it should not be received in its current form partly for reasons of form and partly because they would then wish to contradict it and to cross-examine the deponent about it. I do not propose to receive that material. I do not think the events after the conclusion of the hearing are appropriate matters to address in relation to the exercise of the costs discretion, particularly as they are apparently contentious and would prolong the hearing. For that reason, I propose also not to receive the additional responsive affidavit upon which the second respondent putatively sought to rely. 16 I return to consider the respective communications between the parties leading up to the proceeding. 17 On the material available to me, the solicitor acting for the applicants wrote a number of letters between 16 June 2006 and 15 November 2006 to the solicitor acting for the second respondent in which they requested information about the progress of the administration. Those requests were variously for information about the presence of the administrator on a day to day basis at Yulara to assist in the management of the NAC, the time frame for the administration, the actions of the administrator in undertaking to rectify any concerns of the first respondent in relation to the membership, the management, the proper functioning and staffing of the College, and repeated requests for the second respondent to convene a special general meeting of the NAC.