O'Mara on behalf of the Wiradjuri People of the Bathurst/Lithgow/Mudgee Area v Minister for Lands

REASONS FOR JUDGMENT 1 Ordinarily, where there has been no hearing on the merits and neither party wishes to proceed, the court would order that each party bear their own costs. However, in this matter, the reason why the second respondent and the other respondents do not wish to proceed is because the applicants no longer wish to proceed. That, I believe, brings this matter within the exception mentioned by McHugh J in Minister for Immigration and Ethnic Affairs ex parte Lai [1997] 186 CLR 622 at 624-625. 2 That the applicants no longer wished to proceed with this matter was made clear on 25 January 2008 when the applicants' solicitors wrote to the Deputy District Registrar of the New South Wales District Registry of the Court stating that they wished to, among other things, "Seek leave to discontinue their proceeding." Further on in the letter the applicants' solicitors stated, "A form 29 has been drafted and will, should leave be granted, be filed that day." A form 29 is, of course, a notice of discontinuance under order 22 of the Federal Court Rules 1979. 3 If this matter had been a proceeding and had been discontinued under order 22, order 22 rule 3 would have applied to require the applicants to pay the respondents' costs. The fact that this matter was later held not to be a proceeding, I might add, within section 85A of the Federal Court Act 1976, which may have a different meaning from proceeding within the provisions of the Federal Court Act or rules, does not, I believe, detract from the conclusion that the applicants no longer wish to proceed with this matter. 4 I do not consider it is necessary to examine the reasonableness or unreasonableness of the conduct of the applicants in commencing the proceedings or in deciding they no longer wish to proceed with them. I include within that, whether or not the proceedings were doomed from the outset, or any of the other aspects that were urged upon me by both the applicants and the counsel for the second respondent. The plain fact is they made a decision, obviously in their own best interests, to - to use their own words - "discontinue their proceeding," and I consider that those circumstances justify my exercising my discretion to order the applicants to pay the respondents' costs. 5 I should add that I am not persuaded that I should examine the conduct of the parties during the proceedings to attempt to split costs based upon their conduct of a particular part of the proceedings, compliance with directions or other matters within the proceedings. As to the second respondent's application to have the costs payable forthwith, these proceedings, that is the underlying primary proceedings, are proceedings under section 61 of the Native Title Act for the determination of native title and as Mr Waters points out, those proceedings are likely to be on foot for some time in the future. 6 The respondents to this matter and, indeed, the applicants are not primary parties - if I can use that expression - to the underlying proceedings, and in those circumstances, I believe I am justified in exercising a discretion to order that the costs be payable forthwith. 7 Ms Phillips has asked that I stay the execution of that order pending the appeal period under the Act and rules. I will so order. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.