Corunna v South West Aboriginal Land and Sea Council

Is SWALSC entitled to the costs order it seeks? 51 The remaining question is whether, having regard to the judicial exercise of the costs discretion conferred on the Court by s 43 of the FCA Act, SWALSC is entitled to the costs order it seeks, or whether the Court should make some other order as to costs in the circumstances of this case. 52 In Cheedy, at [12], the Full Court referred to Murray and noted that in proceedings which are not "proceedings" under the NTA but nevertheless concern matters arising under the NTA and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply. 53 In relation to Murray, the Full Court in Cheedy observed as follows at [13]: Murray concerned an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to judicially review a decision of the Native Title Registrar to register an Indigenous Land Use Agreement (ILUA). At first instance, it was held that s 85A did not apply directly to the exercise of the costs discretion, because the proceeding was not one which formally arose under the NT Act. However, because the application involved a consideration of the meaning of important provisions of the NT Act concerning the entering into and registration of ILUAs, the Court said it should take into account the legislative intention of the NT Act in relation to matters which raise for consideration its correct interpretation, and where it is appropriate the Court should 'follow the spirit' of s 85A(1). Although the application at first instance failed, s 85A was relevant in departing from the ordinary rule that costs follow the event and that there should be no order as to costs. On appeal, where the significance of s 85A became less important as the appeal was without merit, an order for costs was made (at [28]): See also The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] per O'Loughlin J. 54 In Murray, the Full Court, at [27], recited what the primary judge had said when assessing that a costs order should not be made, having regard to s 85A of the NTA. The primary judge had stated as follows: Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate 'to follow the spirit of subs [85A(1)] of the Act'; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O'Loughlin J. 55 The Full Court said, at [28], that the approach adopted by the primary judge, was "entirely appropriate in the circumstances of a first instance proceeding". 56 If one goes to the authority cited by the primary judge - The Ngalakan People v Northern Territory of Australia [2003] FCA 23 - O'Loughlin J at [16], having found that the claimants had proved native title over the area claimed near Roper River, but had failed, at the insistence of the respondent, to prove native title to certain roads, simply determined that, having regard to "the spirit" of s 85(1) (sic, s 85A(1)), he should not make a costs order. In the circumstances of the case before O'Loughlin J, the proceeding was plainly a "proceeding" of the type to which s 85A applied and it was within the exclusive jurisdiction of the Court. It was a claimant application for a determination of native title resisted by a respondent. It appears to me that all that O'Loughlin J intended when he referred to the "spirit" of s 85A was to indicate that the case before his Honour was one where the primary rule established by s 85A(1) - that there should be no order for costs - should apply, and nothing more. 57 The case of Doepel has also been referred to above, as one where s 85A did not apply to a non-NTA "proceeding". In Cheedy, at [14], the Full Court observed as follows: Similarly, in Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 the Court considered an application under the ADJR Act to review a decision of the Native Title Registrar made under s 190A of the NT Act to place an application for a determination of native title on the Register of Native Title Claims. The case did not involve a 'proceeding' to which s 85A directly applied. Having regard to the significance of the issues, and the reasonableness of the conduct, it was ordered that the ordinary rule as to costs apply, and the applicant pay the costs of the application. It was apparent that s 85A was relevant to the costs discretion (at [17]): It would clearly be remiss to adopt a rule that, where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the 'spirit' of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Act, and involved consideration of the particular sections directing how that function was to be conducted. I have therefore included such consideration in the exercise of my discretion. 58 What cases like Murray and Doepel emphasise is that there may be cases where key questions have generally related to native title, and in the judicial exercise of the Court's s 43 discretion the Court concludes that no costs or limited costs should be ordered having regard to all relevant circumstances. 59 In this case, Mr Corunna submits that having regard to the nature of the case put, the result, and the character of himself as the applicant, no order as to costs should be made. He draws attention to the following factors: He is self-represented. He is an aged pensioner who has been involved in native title litigation for 15 years but could not afford legal representation. He was seeking to clarify a point of law in relation to the status of his claim group where an unregistered claimant has nonetheless demonstrated a prima facie case. While the Court dismissed his case summarily it made no findings on the legal controversy that he wanted to have clarified. There remains a controversy regarding the Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939 and QGC Pty Ltd v Bygrave (2011) 199 FCR 94; [2011] FCA 1457 decisions (referred to in Corunna at [67]). There has been uncertainty as to who is required to authorise an ILUA under the NTA. In that regard the Explanatory Memorandum, Native Title Amendment Bill 2012 (which has not passed through Parliament) states as follows at [111]: The amendments address current uncertainty in the law about who may authorise an ILUA. In QGC v Bygrave [2011] FCA 1457, Reeves J found that if there is more than one native title group for an ILUA area, where the ILUA area overlaps the area of a registered native title claim, the only people who are entitled to authorise the ILUA are the native title claim group for the registered claim. In Kemp v Native Title Registrar [2006] FCA 939, Branson J held that where the native title parties comprised more than one distinct group, all persons would have to authorise the ILUA, and would have to do so separately, provided their assertion of native title was more than 'merely colourable'. In summary, he wanted to clarify a legal uncertainty which was in the public interest to resolve but due to fundamental flaws in his application he was unable to arrive at that stage of the proceedings. The controversy remains and if he, or others, choose to object to the National Native Title Tribunal's registration decision to register the proposed ILUAs in due course, it will remain. He had a reasonable concern about the proposed permanent destruction of his rights. There was a disparity in resources between himself and those of SWALSC. 60 It is noted that in these submissions Mr Corunna portrays himself to some extent as representing the "public interest". In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, the High Court of Australia addressed the question of the exercise of the costs discretion in the context of "public interest litigation". 61 While McHugh J, with whom Brennan CJ agreed, considered that a plaintiff's motive in commencing litigation in the public interest rather than self-interest was irrelevant to the exercise of the costs discretion, a majority of judges (Gaudron and Gummow JJ in a joint judgment, and Kirby J separately) considered that having regard to the primary source of the costs power in that case - the Land and Environment Court Act 1979 (NSW) - and the way that Act operated, it could not be shown that the primary judge's decision that there be no order as to costs, taking into account amongst other things, the asserted intention of the plaintiff in commencing that proceeding, had miscarried ([144], [497]). 62 In this case it is less easy to see the "public interest" motivation of Mr Corunna's proceeding, save that he claimed interests under the NTA, which Act has the general object of seeking to protect native title. No doubt, as he asserts, he intended the proceeding to be for the benefit of the members of his unregistered claim group. However, as pointed out in the primary judgment, the proceeding was not brought as a representative action. Mr Corunna brought the proceeding in his own name and nobody else's. He was not authorised by any of the named applicants in his unregistered proceeding to bring the proceeding. 63 Further, having regard to the other native title claim group interests that SWALSC represents, who have an interest in seeing the relevant ILUAs being registered under the NTA, it would appear that there is a contest as to who represents the relevant indigenous "public interest" in this case. At best, there may be said to be competing interests. 64 In the result, I am not persuaded that this proceeding can properly be characterised as one in which a "public interest" element should guide the exercise of the costs discretion. 65 In the end, whilst the Court fully appreciates that Mr Corunna wanted to clarify what he considered to be an uncertainty as to his right, as a member of an unregistered native title claim group, to separately authorise the ILUAs in question, there is no doubt, in my view, that his originating application to the Court was misconceived. There may be issues to be raised later in the formal registration process under the NTA, but his proceeding raising those prospective issues was always going to be premature. The right to object later in the registration process under the NTA must have been obvious to Mr Corunna. Yet he commenced this speculative proceeding. By bringing the proceeding at what was clearly an advanced stage of the ILUA registration process, in advance of the statutory objection process, Mr Corunna was bound to cause both the State and SWALSC to mount a substantial response to his application. 66 In all the circumstances, there is, in my judgment, no reasonable basis for the Court to exercise its discretion as to the award of costs so as to deprive SWALSC of its entitlement to the usual order in such circumstances. Mr Corunna's original application, unlike Doepel, has not particularly helped to clarify the law. Nor has it failed on some technicality. In the result, Mr Corunna has exposed himself to the hazards of litigation in that, by bringing an application which has failed, he is liable to meet the costs of the party who has successfully resisted his application. 67 In these circumstances, SWALSC is entitled to an order that Mr Corunna pay its costs of the summary judgment application, to be taxed if not otherwise agreed.

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Cases Cited (23)

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