MRM's claim for costs against the NLC
5 There is no doubt that the Court has power, in appropriate circumstances, to order that a party's costs of a proceeding be paid by a person who is not a party on the record: Knight v FP Special Assets Ltd (1992) 174 CLR 178 (Knight); Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 (Gore); Manton International Pty Ltd (in liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76; Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries Qld Pty Ltd (1993) 45 FCR 224.
6 In Knight, Mason CJ and Deane J (with whom Gaudron J agreed) said at 188-189 that the cases awarding costs against a non-party may be explained on the basis that the power to award costs could be exercised against a non-party who was the "real party" to the litigation. Their Honours then concluded at 192-193:
For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.
That case in the High Court decided that the Supreme Court of Queensland had jurisdiction to make an order for costs against the receivers of companies which were the unsuccessful parties in proceedings, the receivers themselves not being parties to those proceedings (see per Mason CJ and Deane J at 181).
7 Dawson J concurred in the result in that case. His Honour said at 202:
The cases therefore establish a long-asserted jurisdiction to award costs in appropriate cases against a person who is not a party to the proceedings where that person is the effective litigant standing behind an actual party or where there has been a contempt or abuse of the process of the court. Even if the cases were confined to ejectment proceedings (and clearly they are not), the principle lying behind the ejectment cases is that the real litigant rather than the nominal party may be made liable for costs.
8 It was recognised by the Full Court of this Court (O'Loughlin, Whitlam and Marshall JJ) in Gore at 437, [23] that, in applying the principles discussed in Knight, the circumstances in which costs might be awarded against a non-party have not been exhaustively defined. Given the discretionary nature of the power to award costs, that is necessarily so. See also FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 (FPM Constructions); Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 488 (Applicant NAGM).
9 MRM contends that any costs order should be jointly against the applicants and the non-party NLC. It says that the NLC has funded the applicants' costs of the proceeding, and has directed its conduct. It also says that the NLC could have, but chose not to, bring the proceeding in its own name, or jointly with the other applicants. It also says that the applicants are impecunious and that the NLC is publicly funded. Finally, it says that its own costs are substantial. On that combination of matters, MRM contends that, in the interests of justice, the costs order should be made against the NLC jointly with the applicants.
10 It is clear from its own submissions that MRM recognises that, if the costs order is made jointly against the applicants and the NLC, the NLC will in fact bear the responsibility of paying those costs.
11 The NLC is apparently the Aboriginal Land Council established under s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act) relevant to the area of the McArthur River Mine. Under s 23(1)(a) and (c) of that Act, its functions include ascertaining and expressing the wishes and the opinion of Aboriginals living in its designated area as to the management of Aboriginal land in that area, and consulting with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in that area with respect to any proposal relating to the use of that land. The McArthur River Mine is not Aboriginal land as defined in s 3, but as I noted in the primary reasons for judgment at [3], there is proximate Aboriginal land. The NLC is also the relevant representative body for the area under s 203AD of the Native Title Act 1993 (Cth). Section 203BB(1) and (2) require the NLC upon request to facilitate and assist persons who may hold native title. That assistance may, I assume, include the provision of legal assistance; see also ss 34, 39, 63 and 64 of the ALR Act. The applicants are variously members of seven native title claim groups seeking the determination of native title rights and interests over land in the vicinity of the McArthur River Mine and land which may have been affected by the proposed McArthur River diversion: see the primary reasons for judgment at [3]. There is nothing to indicate that the NLC was doing other than performing its functions in support of the Lansen applicants in the role it took in the overall conduct of the proceeding.
12 In my view, that role of the NLC does not amount to it being the real party conducting the proceeding.
13 There is no evidence that the applicants simply lent their names to the proceeding, and were uninterested in its result. Their interests or potential interests in the land upstream and downstream of the McArthur River Mine were real in a practical sense, as well as in a theoretical sense. As any land owner or occupier (or putative land owner or occupier), they were entitled to be concerned about the potential environmental impacts of the proposed development of the mine. There is no reason to think they did not care about those impacts, or to think they did not wish to do something about them. The nature of the case was not such as to infer to the contrary because none of them gave evidence. (I use the terms land owner or occupier in a loose way to include rights and interests which may exist under the ALR Act or the Native Title Act 1993.)
14 I am also not persuaded that the NLC could have conducted the proceedings in its own name. The standing of the applicants was a significant issue, until ultimately acknowledged. MRM has not pointed to any clear basis for the NLC to have had standing to have brought the proceedings. Nor, indeed, has it pointed to any power in any enactment or in the NLC constitution which would have enabled it to do so irrespective of the wishes of Aboriginal persons or groups claiming interests in the land potentially affected by the proposed mine development.
15 The NLC did not contest that it funded the proceedings through engaging solicitors and counsel. That was one of its functions. It is funded under a statutory scheme, and as discussed in Northern Land Council v Commissioner of Taxes (2002) 171 FLR 255 by Mildren J (with whom Martin CJ agreed) at 262 [28], 264 [34] and by Thomas J at 277 [84], it performs its functions to ameliorate the disadvantage which some Aboriginal persons or communities may experience in asserting their rights and interests. I do not regard the fact that the NLC engaged and funded solicitors and counsel for the Lansen applicants, in the circumstances, as of much weight. The NLC did not itself stand to gain directly from a successful outcome of the proceedings; cf Gore at 452 [64].
16 In FPM Constructions in the New South Wales Court of Appeal at [210], and in Applicant NAGM in the Full Court of this Court at 500-501, [66]-[68], some circumstances were identified in which a non-party order for costs may be made. Contrary to MRM's submission, for the reasons given, I do not consider the NLC position falls within the circumstances identified in FPM Constructions in which a third party order for costs might be made. In that case, a third party costs order was ultimately refused: see per Basten JA (with whom Beasley and Giles JJA agreed) at [198]-[215]. As I have found in this matter, Basten JA said that the third party concerned was not the "real party" and that the plaintiff had a real interest in the outcome of that proceeding. The third party in that case was the plaintiff's sole director, and was its guiding force including by instructing its counsel. As with the NLC in this matter, the third party's role was a legitimate one. Basten JA at [214] pointed out the need to make an overall evaluative assessment of the factors which may be relevant, so that the role of a third party in the conduct of a proceeding including the provision of funding for its conduct is properly assessed. That, of course, does not preclude the exercise of the power in other appropriate circumstances. In Applicant NAGM, the Court (Sackville, Allsop and Jacobson JJ) at 501, [68] emphasised that an order for the payment of costs by a non-party is exceptional and any application for such an order "should be treated with considerable caution".
17 I have carefully considered the matters put by MRM. I assume that MRM's costs are substantial and that the applicants are unlikely to be able to satisfy any order for costs against them. However, I have come to the firm view, for the reasons I have given, that it is not appropriate to order the NLC to pay costs of the proceedings to MRM, assuming I make an order for costs of the proceedings in its favour against the Lansen applicants.