Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation

BETWEEN: COLIN REX GALE, GORDON WILLIAM MORTON AND ANGELA MARTIN ON BEHALF OF THE DARUG TRIBAL ABORIGINAL CORPORATION

AND: NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION

JUDGE: JAGOT J DATE: 2 FEBRUARY 2011 PLACE: SYDNEY

THE ISSUE 1 The issue before me today is how this proceeding should be resolved. 2 The applicants wish to be granted leave to discontinue the proceeding on the basis that there be no order as to costs. Leave to discontinue is required by Order 22, Rule 2(2) of the Federal Court Rules, which relevantly provides that: (2) A party who represents any other person in the proceeding shall not discontinue his claim for relief under subrule (1) without the leave of the Court. 3 Another party to the proceeding, Deerubbin Local Aboriginal Land Council (Deerubbin), submits that the proceeding should be dismissed and conditions imposed on the commencement and maintenance of any fresh proceeding, with costs ordered in favour of Deerubbin for the period from 31 March 2004 onwards.

BACKGROUND 4 The circumstances of this dispute arise from an order I made on 30 November 2010. At that time, Mr Neumann, solicitor, appeared on behalf of the applicants, seeking leave to discontinue the proceeding. Mr Beckett appeared on behalf of Deerubbin and indicated that Deerubbin sought orders to the effect which I have already noted. As a result of that dispute, I made the following orders: (1) The Deerubbin Local Aboriginal Land Council is to notify the other parties with a copy to the Court […] of: (a) the conditions it contends should be imposed on any grant of leave to discontinue the proceeding; and (b) the costs order it seeks by 8 December 2010. (2) Any other party may file and serve any evidence in response by 22 December 2010. (3) List the application for leave to discontinue on 2 February 2011 at 10.15 a.m. 5 The matter came before me this morning at 10.15 a.m. Mr Waters of counsel appeared on behalf of the New South Wales Minister for Land (the Minister) and NTSCORP Ltd (NTSCORP). Mr Bentancor appeared on behalf of the New South Wales Farmers' Association, which has been appointed to act as agent for the Mount Boyce Nurseries in this proceeding. Ms Davis appeared on behalf of the Commonwealth. As previously noted, Mr Beckett appeared on behalf of Deerubbin. I also granted leave to Mr Apostle to appear in order to assist the Court on behalf of Ms Sandra Lee, who in the evidence appears in correspondence as Secretary of the Darug Tribal Aboriginal Corporation (the Corporation), being the corporate entity on behalf of whom the nominated individual applicants are said to appear (although, as will become apparent, this is subject to a dispute between those persons and the Corporation). 6 The matter was stood down briefly because of the non-appearance of the solicitor for the applicants. Ultimately, the Court received a communication to the effect that a representative of the applicants would attend the Court, and the matter was adjourned to enable that to occur. In consequence, Ms Grant, a solicitor of Mr Neumann's office, has attended today on behalf of the applicants. Ms Grant's position, unsurprisingly, was that she was unable to advance the matter in the interests of the applicants above and beyond the written document which was prepared and filed by Mr Neumann, presumably in response to the orders I made on 30 November 2010. This document is identified as "Submissions in Reply", and sets out the applicants' position which, as noted earlier, is that they should be given leave to withdraw the claim with no order as to costs. Each of the other parties who appeared, with the exception of Deerubbin, indicated their position as being in accord with that of the applicants. 7 Deerubbin's position is different. The reasons for that difference are apparent from the affidavit of Kevin Cavanagh, Deerubbin's Chief Executive Officer, sworn on 19 February 2010, and from a further affidavit of Mr Cavanagh sworn on 1 February 2011. Both affidavits have been read in support of Deerubbin's application. In addition, I have had the benefit of written submissions dated 1 February 2011 which Deerubbin filed in support of the orders it says should be made. 8 The native title application was lodged on 12 May 1997. It was amended on 24 May 2000, having failed the registration test in its original form. The amendments resulted in the application being accepted for registration by the National Native Title Tribunal on 4 December 2000. Thereafter, mediation in relation to the application proved unsuccessful. 9 Deerubbin's contentions in part relate to another application which resulted in reasons for judgment of Madgwick J being delivered on 31 March 2004 (see Gale v The Minister for Land and Water Conservation for the State of New South Wales [2004] FCA 374) (the Gale proceeding). 10 Deerubbin was a respondent to the claim in the Gale proceeding, which was also styled as having been brought on behalf of Mr Gale and "the Darug people". Mr Gale sought a determination that native title existed in relation to a parcel of land at Lower Portland in New South Wales. This land had been the subject of a claim by Deerubbin under the Aboriginal Land Rights Act 1983 (NSW) (the Aboriginal Land Rights Act). Because of the provisions of that Act, there could be no transfer of the land to Deerubbin. The proceeding relating to the Lower Portland claim had a lengthy and unfortunate procedural history, as set out in Mr Cavanagh's affidavit. Suffice it to say that by 31 March 2004, Madgwick J had determined that native title did not exist in relation to the subject land. Madgwick J's reasons for judgment record findings including the following: "[i]nescapably, what is essential for a native title claim appears to have been irretrievably lost" (at [116]); there was "no acceptable evidence, even taking a generous view of possible inferences […] of what any such rights and interests actually were, before sovereignty, in relation to the claimed land except in terms of the greatest vagueness" (at [120]); there was "no evidence that there is now anything like a body of traditional laws and customs, having a normative content in relation to rights or interests in land, which any member of the claimant group now acknowledges or observes" (at [121]); and "the reality seems to be that the present idea of a Darug land-owning polity is an aspiration which arose, after Mabo, out of the process, more generally, of the Darug Link group's earlier efforts, in rather less of a 'land rights' context, to recover some of their lost history and have public recognition and respect of their ethnic and cultural roots and their historic losses and injustices" (at [131]). 11 These matters led Madgwick J to the conclusions expressed at paragraphs [135] and [136] of his reasons for judgment as follows: [135] Despite the usual, requisite and exhaustive processes undertaken to attract to the proceedings anyone who might have an interest in the claimed land, nobody but the claimant group represented by the applicant has come forward to assert native title in respect of that land. [136] In those circumstances and for the foregoing reasons, there is no adequate reason why I should not make a determination (see s 225) that native title does not exist in relation to the subject land. 12 Madgwick J made orders reflecting those reasons for judgment on 7 September 2004 by which the Gale proceeding was resolved against the claimant group. 13 The solicitor for the applicants in the Gale proceeding, Mr Neumann (the same solicitor as in the current proceeding), acknowledged a connection between the Gale proceeding and the present proceeding. On 4 December 2001 the transcript of a directions hearing records the following exchange between Madgwick J and Mr Neumann for the applicants in the Gale proceeding. His Honour: Mr Neumann, the other case raises the same community interconnection issues. I interpolate here that "the other case" in this sentence is the present proceedings. His Honour continued: If you can't get up on that one, you would never get up in this one. Mr Neumann: That's right, your Honour. His Honour: The costs of doing anything in relation to anything concerned with tenure in connection with this matter is such that it shouldn't be countenanced unless there is some reasonable probability of success, I would have thought. Mr Neumann: Yes, your Honour.

DEERUBBIN'S CONTENTIONS 14 Deerubbin's position is that on and from 31 March 2004, when Madgwick J's reasons for judgment were delivered, it was or should have been apparent to the applicants in this proceeding that they could not succeed. According to Deerubbin, from 31 March 2004 onwards this proceeding has been kept on foot as leverage to induce the State Government to negotiate with the applicants and others for outcomes pursuant to an Indigenous Land Use Agreement (ILUA). Further, Deerubbin points to the fact that from at least May 2009 there has been evidence of a schism within the claim group. There is correspondence from Sandra Lee, as Secretary for the Corporation, indicating that Mr Neumann no longer represented the Corporation and seeking that all negotiations occur directly with the Corporation. 15 In his written "Submissions in Reply" of 22 December 2010, Mr Neumann records the following: (5) The applicant has acknowledged that the claim as currently framed suffers from a fatal defect, namely, there is not a proper description of the claim group so as to properly identify the claim group, in that the members of the claim group are not listed or described by reference to apical ancestors and instead is described as the members of Darug Tribal Council Aboriginal Corporation, a corporation duly established under the Aboriginal Councils and Associations Act 1976. (6) The applicant has been unable to obtain the agreement of all relevant parties to a process to amend the claim group description to remove the defect. (7) The applicant has made it clear that if the ILUA cannot proceed, the applicant would seek leave to withdraw the claim with no order as to costs. (8) The applicant has been unable to obtain the agreement of Darug Tribal Aboriginal Corporation to proceeding with the proposed ILUA or amending the claim group description to cure the defect set out in paragraph 3 [sic 5] above. 16 Deerubbin notes that this fatal flaw in the claim was apparent to and conceded by the applicants at the latest at the directions hearing on 25 February 2010. According to Deerubbin: If the proceedings are discontinued or alternatively dismissed, it would be unjust to Deerubbin Local Aboriginal Land Council, having suffered 12 years of native title claim proceedings that stood no chance of success and which had a tangible impact upon its interests, for the applicant to carry no responsibility and for the same claims to remain open to people identifying as Darug in the future. A repetition of the present proceedings would also be contrary to the interests of the administration of justice and the public policy in se 22 of the Federal Court of Australia Act 1976. 17 In support of its submissions in respect of the imposition of conditions on the commencement of fresh proceedings, Deerubbin referred to the decision of Collier J in Close on behalf of the Githabul People (No. 2) v State of Queensland [2010] FCA 828, in which her Honour determined that while leave to discontinue the proceedings should be granted, conditions should be imposed upon the recommencement of proceedings. 18 Section 85A of the Native Title Act 1993 (Cth) (the Native Title Act) provides as follows: (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. (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. 19 Deerubbin seeks an order for costs from 31 March 2004 in the following circumstances as identified in its written submissions: (a) The proceeding has been maintained when it was clearly defective. (b) The proceeding has been maintained with the knowledge that there was no reasonable prospect of success since at least 31 March 2004. (c) The maintenance of the proceeding has amounted to an abuse of process since at least that time. (d) The proceeding has been maintained despite the applicant's knowledge that there was a serious defect in its authority since at least May 2009.

PRINCIPLES 20 In terms of costs, it is sufficient to repeat the observations of Finn J in McKenzie v State of South Australia [2006] FCA 891 (McKenzie v State of South Australia) at [6] , where his Honour stated: The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see e.g. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13]. 21 His Honour continued at [7]-[8]: [7] The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act… [8] The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the "unreasonable conduct" of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs. 22 Finn J determined that there should be a costs order in favour of the two respondents on the basis, as he described it, that the case is one in which: The respondents have had to perform a tutelary function in relation to the conduct of this proceeding to date. 23 In McKenzie v State of South Australia Finn J also identified the principles applicable to a discontinuance under Order 22 of the Federal Court Rules at [5]: … The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs.

DISCUSSION 24 Mr Apostle, who is assisting the Darug Tribal Aboriginal Corporation, indicated that the Corporation does not oppose there being a grant of leave to discontinue the proceedings. Accordingly, and consistent with the principle which Finn J identified in McKenzie v State of South Australia, the applicants should be permitted to discontinue these proceedings. I propose to grant leave to them to do so. This leads to the question of potential injustice, requiring consideration of the two issues of conditions on any fresh proceedings and costs. 25 I will deal with the issue of costs first. As set out in McKenzie v State of South Australia, the starting-point is that each party will bear its own costs of proceedings under the Native Title Act. The matters on which Deerubbin relies essentially involve the proposition that the proceeding has been an abuse of process since 31 March 2004 because the applicants should have been aware from that time, as a consequence of Madgwick J's decision in the Gale proceeding, that they could not succeed. 26 I am not persuaded by the submissions for Deerubbin that the circumstances are such as to warrant a departure from the usual starting-point identified in s 85A(1) of the Native Title Act. It seems to me that the applicants were entitled to maintain this proceeding even if only by reason of the acknowledgement by all parties to the Gale proceeding that there would be no estoppel operating in relation to this proceeding. I do not see the conduct of the applicants in maintaining the proceeding after 31 March 2004 as being of a sufficiently unreasonable character to justify the making of an order otherwise than as contemplated by s 85A(1). 27 However, as to the second issue of conditions, I am persuaded by the submissions of Deerubbin that conditions should be imposed upon the commencement of any new proceeding. 28 The fact is that the maintenance of this proceeding by the applicants means that Deerubbin has been prevented from fully exercising rights which would otherwise be vested in it by the Aboriginal Land Rights Act. As described in paragraph 9 of the submissions for Deerubbin, the present proceeding has affected Deerubbin's function of making claims to claimable Crown lands pursuant to s 36 of the Aboriginal Land Rights Act. In Deerubbin's area, the native title claim has been made in relation to those lands identified by the Surveyor-General of New South Wales as being "other Crown land" (which is also identified, I note, in attachment C to the amended application). As Deerubbin states: This is the category of land in Deerubbin LALC's area most likely to be claimable under s 36 of the [Aboriginal Land Rights Act]. However, because these lands are subject to a native title claim that has been registered, these lands are not claimable under that provision (see s 36(1)(d) of the [Aboriginal Land Rights Act]). As a result, Deerubbin has had claims to such lands refused by the Minister. 29 The submission continues in paragraph 10, as follows: Further, Deerubbin LALC has a strong interest in this present proceeding being determined with finality. This is because the [Aboriginal Land Rights Act] provides that: (a) grants of land under s 36 of the [Aboriginal Land Rights Act] are "subject to any native title rights and interests existing in the lands immediately before the transfer" (s 36(9) [Aboriginal Land Rights Act] - applying to land claimed under s 36 after 28 November 1994); and (b) a LALC is prohibited from dealing with such land "unless the land is the subject of an approved determination of native title" (s 42 [Aboriginal Land Rights Act]). 30 For these reasons, and given the history of issues in respect of the claim area between people identifying as the Darug people and the land within the claim area, there should be a condition imposed that there be no further claimant application without the leave of the Court. It is inappropriate at this time to seek to impose any particular requirement on the person seeking the exercise of leave in their favour; any application for leave should be determined at the time the application is made. I also agree that there should be an exclusion from any requirement for leave for the two classes of application which Deerubbin has identified in its proposed order 4. 31 By reason of the fact that Mr Neumann is unavailable and Ms Grant has appeared without the benefit of any detailed knowledge of the matter, the applicants have been unable to address me today on the submissions which Mr Beckett has made. In circumstances where: (i) the matter was listed for hearing today on 30 November 2010, (ii) Deerubbin notified the other parties with a copy of the orders it proposed on 8 December 2010, and (iii) all other parties were given an opportunity to file and serve evidence in response by 22 December 2010, an opportunity which the applicants took up by reason of the filing of the two-page document which I have identified as "Submissions in Reply", I am satisfied that I should make orders today whilst nevertheless providing the applicants with an opportunity to seek to set aside or vary those orders within a specified time period. This will have the advantage of finally disposing of the matter today but also ensuring that the applicants can, if they wish to do so having seen the form of the orders, approach the Court again if there is some real basis upon which they wish to submit that those orders should be varied or set aside. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.