Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams

Federal Court of Australia|2018-03-16|Before: Barker J

There be no order for costs in each proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 On 5 December 2018, I dismissed two judicial review applications made in respect of the decision of the delegate of the Registrar to not register the Balanggarra #3 ILUA under the NTA. I then made orders enabling the parties to make submissions about the costs of the proceedings, which I further ordered would be determined on the papers following the lodgement of written submissions. 2 This judgment deals with the question of costs. In it I use the same abbreviated expressions that were used in the primary judgment. See Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955.

The KLC and claimant's submissions 8 The KLC and the claimant also recognise the Court's discretionary power to award costs under s 43 of the FCA Act. However, they draw attention to my decision in Stock at [11]. 9 It is recognised by them that, while costs ordinarily follow the event, in special circumstances, including having regard to the "public character" of litigation, a different costs order might be appropriate. Reference in this regard is made to Oshlack v Richmond River Council (1998) 193 CLR 72 at [20] and [49] (Gaudron and Gummow JJ); [1998] HCA 11. 10 In short, the KLC and claimant submit there was a "novel question" of general importance and some difficulty involved in this case, which may lead to the Court declining to order costs against the unsuccessful party. In this regard they refer to Ruddock at [17] (Black CJ and French J). 11 The KLC and claimant also submit that while, as I found in Corunna, s 85A of the NTA does not directly apply to proceedings under the ADJR Act, the "spirit" of s 85A may be considered applicable in matters which raise issues of construction of the NTA. In this regard, they refer, amongst other decisions, to The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16]; The Lardil Peoples and Others v State of Queensland and Others (2001) 108 FCR 453 at [157]; [2001] FCA 414; Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 at [15]; O'Mara and Another v Minister for Lands and Others (2008) 167 FCR 145 at [27]-[37]; [2008] FCA 51; and Fesl and Others v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 at [19]; [2008] FCA 1479. See also Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 at [27] ("spirit" of s 85A limited to proceedings involving questions of construction of the NTA). 12 So far as the costs in the present proceedings are concerned, by [7]-[10] of their written submissions, the KLC and claimant submit that: 7. The First to Fifth Respondents in proceeding WAD 178 of 2018 and the Fifth to Ninth Respondents in proceeding WAD 179 of 2018 (being the French/Williams families represented by Cross Country Native Title Services) (Respondents) have provided a written undertaking that they will not pursue the First Respondents for costs (see the affidavit of Claire Saffery affirmed on 12 December 2018). 8. In the event that the Court is minded to exercise its discretion in relation to costs, the First Respondents submit that no order as to costs should be made in respect of the First Respondents, on the grounds that: (a) the application involved the first judicial consideration of a key aspect relating to the construction of s 251A of the NTA; (b) the application raised arguable grounds for the Court's consideration. The NTA provisions relating to Indigenous Land Use Agreements (ILUAs) and to the authorisation of ILUAs is of great importance to the proper administration of the NTA; (c) the First Applicants were partially successful in their submissions with respect to the operation of s 251A of the NTA and the role of the Registrar of the National Native Title Tribunal; (d) the First Applicants did not pursue a personal interest in the application; (e) the 'spirit' of s 85A of the NTA is relevant to the exercise of the Court's jurisdiction to award costs; and (f) the First Applicants' conduct in litigation does not qualify as unreasonable. 9. In any event, consistent with the overarching purpose of the civil practice and procedure provisions, as set out under ss 37M and 37N of the Federal Court Act, the First Applicant in proceeding WAD 178 of 2018 (being the Kimberley Land Council) funded the Respondents' legal costs associated with the proceedings in order to facilitate the just resolution of a dispute regarding the construction of s 251A of the NTA. The absence of any personal liability accrued by the Respondents in relation to the costs associated with the proceedings supports the submission that no order as to costs should be made in respect of the First Respondents. 10. Further, a contractual arrangement between the Kimberley Land Council and the Respondents' legal advisors (Cross Country Native Title Services) requires repayment of costs to the Kimberley Land Council in circumstances where an order is made that entitles the Respondents to recover costs from another party (see affidavit of Erika Blades affirmed 12 December 2018). An order for costs made against the First Applicant would therefore result in the First Applicant making payment to itself following an assessment of costs.

The State and Minister's submissions 13 The State and Minister similarly recognise the Court's discretion to award costs under s 43 of the FCA Act is both absolute and unfettered, although it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation. 14 They recognise that ordinarily costs will follow the event. 15 In this case, however, the State and Minister submit the Court should have regard to the "spirit" of s 85A of the NTA in exercising the costs discretion. 16 In this regard, the State and Minister submit, in their written submissions at [9]-[23]: 9. Section 85A of the Native Title Act provides that, unless a party has acted unreasonably, and unless the Court orders otherwise, each party to a proceeding is to bear his or her own costs. 10. As stated, costs in this proceeding are governed by section 43 of the FCA Act. However, the authorities establish that the 'spirit' of section 85A of the Native Title Act is a factor to be taken into account in the exercise of the Court's discretion to order costs under section 43 in proceedings that involve the construction of provisions of the Native Title Act. [QGC Pty Ltd v Bygrave [2012] FCA 309 at [24] (Reeves J), citing Murray v Registrar of the Native Title Tribunal (2003) 132 FCR 402, Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) [2010] FCA 1154, Brownley v Western Australia (No 2) (1999) 95 FCR 172. Lardil Peoples v Queensland (2001) 108 FCR 453, Northern Territory of Australia v Doepel (No 2) [2004] FCA 46, O'Mara v Minister for Lands (2008) 167 FCR 145 and Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176.] 11. In particular, there is authority that the Court should have regard to the 'spirit' of section 85A in matters that involve consideration of the functions undertaken by a Registrar under the Native Title Act [Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 at [17] (Mansfield J).] Each party should bear its own costs of the proceedings 12. The Second Applicants respectfully submit that there should be no order as to costs in these proceedings for three reasons. 13. First, the Second Applicants' review application involved the construction of provisions of the Native Title Act, and in particular section 251A, and thus the 'spirit' of section 85A of the Native Title Act is to be taken into account in the exercise of the discretion to award costs. 14. Second, it is submitted that the issues raised by the Second Applicants' review application were novel. 15. The Second Applicants' grounds of review raised the proper construction of section 251A of the Native Title Act and, in particular, the expression 'things of that kind'. 16. Whilst the construction of section 251A has been the subject of judicial consideration, [See, eg QGC Pty Ltd v Bygrave (2011) 199 FCR 94] the proper interpretation of the phrase 'things of that kind' has not been specifically considered. 17. The Court's consideration of section 251A and the phrase 'things of that kind' in the Reasons for Decision has clarified that: 17.1 for the purposes of section 251A(l)(a), the content of an agreement is relevant to determining whether or not there is a traditional decision making process that applies to the authorisation of that agreement; and 17.2 the question of whether or not there is a traditional decision-making process as described in section 251A(l)(a) in relation to the authorisation of a particular agreement is a question to be decided by the group of native title claimants themselves. It is not a question for the Registrar to decide upon registration of the agreement. 18. Third, it is submitted that there was a public benefit to be derived from the consideration of the issues raised by the Second Applicants' grounds of review and, in particular, clarification of the proper construction of section 251A. 19. In Northern Territory of Australia v Doepel (No 2), Mansfield J accepted that the public interest in the judicial resolution of issues raised by a review application may justify a Court's departure from the ordinary rule when exercising its discretion to award costs. 20. In Doepel (No 2) Mansfield J ultimately concluded that the unsuccessful applicant should be ordered to pay the costs of the application as (1) the application did not simply involve the proper construction of certain provisions of the Native Title Act, but to a 'significant degree' turned upon its own particular facts and circumstances; and (2) the particular provisions of the Native Title Act considered did not give rise to commonly raised issues [Doepel (No 2) at [14], [18] (Mansfield J)]. 21. It is respectfully submitted that the present proceedings can be distinguished from Doepel (No 2) as: 21.1 the resolution of the Second Applicants' review application did not turn upon the particular facts and circumstances, but upon the proper construction of the relevant provisions of the Native Title Act; and 21.2 the provisions considered are commonly applied. 22. Further, it was recognised by Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 that there is a 'public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs'. [Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 at [10]. Murray J's approach to costs was upheld on appeal: Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402 at 410 [28] (Spender, Branson & North JJ)]. 23. In conclusion, in light of the public interest in the resolution of the novel issues raised by the Second Applicants' review application, and the relevance of section 85A of the Native Title Act, it is submitted that it is appropriate for the Court to depart from the ordinary rule and refrain from making an order as to costs.

Consideration 17 The parties have set out concisely both the principles relevant to the exercise of the costs discretion in this particular case, and the circumstances in relation to which they contend a costs order, of a particular kind, should be made, or not be made. In the result, I consider there should be no order for costs in each of the proceedings. 18 In short, this is a case where s 43 of the FCA Act confers on the Court a power to award costs, which power is to be exercised judicially. 19 Ordinarily, including in an ADJR Act review proceeding challenging the exercise of statutory power under the NTA, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party. I ultimately found as much in Corunna. 20 It is agreed all round in this case, by the parties, that s 85A of the NTA has no direct application to the exercise of the costs discretion here, because the ADJR Act proceedings are not proceedings that relevantly relate to native title. 21 The essence of the submissions made as to why there should be no order as to costs include: that the "spirit" of s 85A of the NTA should be regarded; that there is something in the nature of "public interest" litigation in these review proceedings, in the sense discussed in Oshlack (and referred to and discussed by me in Corunna); that the substantive issues concerning s 251A of the NTA and its application in relation to the authorisation of the Balanggarra #3 ILUA here were of some importance and complexity; and for all the foregoing reasons these proceedings should be seen very much as if they were proceedings under the NTA to which s 85A of the NTA would apply. 22 I have set out above the detailed submissions of the parties as to why a costs order should be made or should not be made. They are targeted submissions and I have appreciated the force of them. 23 I consider that whilst these ADJR Act proceedings are not directly affected by s 85A, the subject matter of the litigation was very closely related to the administration of the NTA, and indeed, arose in the course of the administration of the NTA. 24 The question of the registration of ILUAs, more generally, is a matter of considerable importance. The power to register an ILUA is exercised by the Registrar, or delegate, as it was here, under the NTA. The questions falling for considering, in that regard, directly arise under the NTA. 25 The particular question of authorisation involving s 251A of the NTA is also a matter of importance and some complexity. The facts of this case, in my view, demonstrate that that is so. The role of a local group, on the facts of this case, in the decision-making of the wider native title holding group is likely to be a not uncommon feature of decision-making. Also there is a question of what "things of this kind" are affected by traditional decision-making processes. And there is the question of who decides that question. 26 It is not surprising, although there may have been other reasons for this agreement, that the KLC agreed to fund, on terms, the participation of the objectors in these proceedings to deal with these significant questions. 27 The rulings I have made concerning those questions are calculated to assist in identifying procedures which ordinarily and prudently will need to be taken to ensure that the authorisation process is conducted in the manner specified by the NTA. 28 There is a considerable public interest in seeing such procedures established and complied with, because the process of making ILUAs, registering them and then seeing them properly implemented, can be both time consuming and costly. 29 To some extent, these considerations involve an appeal to the "spirit" of s 85A of the NTA, or the "public interest" nature of the litigation. More correctly, however, my decision, that there should be no order as to costs, simply involves a judicial exercise of the s 43 of the FCA Act costs power having regard to all relevant factors. Having regard to the subject matter of the litigation, to the issues of construction involved, and the factual circumstances in which the key questions have been raised, I find that there should be no order as to costs in each proceeding.

Order 30 The Court orders: (1) There be no order for costs in each proceeding. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

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