Ellis v Central Land Council

1. The appellants pay the first and fifth respondents' costs of the appeal, as agreed or assessed.
2. The cross-appellants pay the first to third cross-respondents' costs of the cross-appeal, as agreed or assessed.
3. The second, third, fourth and sixth respondents (who are the fourth to seventh cross-respondents) bear their own costs of the appeal and the cross-appeal.
4. All parties bear their own costs in relation to the notices of contention. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 24 January 2019, the Court published its reasons for judgment in this matter (see Ellis v Central Land Council [2019] FCAFC 1). The parties were invited to make submissions on the issue of costs and any other consequential relief arising from those reasons for judgment. 2 The parties have availed themselves of that opportunity. They agree that the Court should order the appellants to pay the costs of the first and fifth respondents in respect of the appeal and that the cross-appellants should pay the costs of the first to third cross-respondents on the cross-appeal. They also agree that all parties should bear their own costs in relation to the notice of contention. 3 The only issue in dispute is whether the second and sixth respondents should have their costs in the appeal and cross-appeal. 4 The Court considers that the second respondent (the Northern Territory) and the sixth respondent (Indigenous Essential Services Pty Ltd) should bear their own costs in these matters. They adopted the written submissions of the first and fifth respondents (the CLC parties) in respect of both the appeal and the cross-appeal. They added very little by way of submissions, which were effectively confined to the issue whether equity would grant relief in the event that the appeal was upheld. We do not consider that the extent of this limited participation makes it just that the second and sixth respondents have a separate order for costs in their favour in respect of the appeal or cross-appeal. It was open to them to file a submitting notice, save as to costs, but they elected not to do so. As noted above, they added little to the case which was put by the CLC parties on the appeal or cross-appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker, Griffiths and White J.