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[2003] FCA 45
Federal Court of Australia
2003-02-06
Marshall J
Original judgment source is linked above.
1 On 20 December 2002, the Court published its reasons for judgment in Murray v The Registrar of the National Native Title Tribunal [2002] FCA 1598. The applicant, Ms Murray, failed in her application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) to have the Court set aside a decision of a delegate of the Registrar of the National Native Title Tribunal ("the "Tribunal") to register an indigenous land use agreement ("the ILUA"). 2 The second respondent, Blairgowrie Safe Boat Harbour Limited ("Blairgowrie"), now seeks that Ms Murray pay its costs of the proceeding. Ms Murray opposes the making of such an order. 3 As originally filed and served, the application named the Registrar of the Tribunal as the only respondent and referred to the "applicants" as "Sonia Marie Murray and the Bunurong People". The application did not rely on the provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth). It did not identify who "the Bunurong People" were. During the hearing of the matter, counsel for Ms Murray conceded that Ms Murray was the only proper applicant and thereby consented to an order which amended the title of the proceeding to name her as the sole applicant. 4 By motion dated 18 March 2002, Blairgowrie sought to be joined as a party to the proceeding. It did so in a context where the Registrar of the Tribunal did not propose to take an active role in the proceeding beyond providing affidavit evidence of the facts and circumstances leading to the registration of the ILUA. As a party to the ILUA, Blairgowrie had an interest in maintaining the registration of the ILUA. On 15 April 2002, the Court ordered that Blairgowrie be joined as the second respondent to the proceeding. The Court was then in a position to have before it a "contradictor" party in respect of the application. 5 Case management conferences in the proceeding were held by Registrar Efthim on 24 June 2002 and 2 July 2002. On 25 July 2002, the Court ordered that Ms Carolyn Briggs be joined as the third respondent and made orders to proceed the matter to trial. Pro bono senior and junior counsel were appointed by the Court to represent Ms Briggs. The major carriage of the case in opposition to Ms Murray was thereafter in the hands of counsel representing Ms Briggs. 6 Ms Briggs and the Tribunal did not seek an order for their costs of the proceeding. 7 It is not in dispute that an order for the payment of costs is discretionary and that the discretion must be exercised judicially. It is also not in contest that the ordinary rule is that costs should follow the event and that a successful party should receive its costs unless special circumstances justify some other order; see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [11], (2001) 115 FCR 229 at 234-235, per Black CJ and French J.
8 The proceeding was not one under the Native Title Act 1993 (Cth)but it did involve a consideration of the meaning of important provisions in that legislation concerning the entering into and the registration of ILUAs. The judgment of 20 December 2002 dealt with issues relevant to the scope and meaning of s 24CD of the Native Title Act, amongst other matters. It was the first one of its kind to do so. If the application had have been one commenced under the Native Title Act, the Court would have been required to consider the provisions of s 85A of that Act. Section 85A provides that:
(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." 9 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. 10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray. 11 I will make the following orders as to costs: 1. The applicant pay the second respondent its costs of, and associated with, its motion of 18 March 2002 to be joined as a respondent to the proceeding; such costs to be taxed in default of agreement.
Solicitor for the Applicant: Mirimbiak Nations Aboriginal Corporation
Solicitor for the 2nd Respondent: Minter Ellison
Date of Completion of written submissions: 31 January 2003
Date of Judgment: 6 February 2003
Murray
Registrar of the National Native Title Tribunal