Aboriginal Sacred Sites v The Honourable M. Maurice

[1986] FCA 400

.1 IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985

GENERAL DIVISION )

:	-	B
THE ABORIGINAL SACRD SITES PROTECTION AUTHORITY

Applicant

AND:

THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

First Respondent

THE ATTORNEY GENERAL FOR

THE NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

THE CENTRAL LAND COUNCIL

Third Respondent

ROBERT BRUCE REPBURN

Fourth Respondent

and

IN THE MA!ITER OF THE WARUMUNGU LAND CLAIM

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G336 of 1985

GENERAL DIVISION 1

IN THE MA!lTER of an Application for Writs of Prohibition

and Certiorari against THE HONOURABLE MICHAEL DAVID ANDREW

MAURICE, ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

AND IN THE OF THE WUMUNGU LAND CLAIM

M PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

MINUTE OF ORDER

CORAM : Bowen, C.J., Woodward and Toohey JJ.

U: 16	September,	1986
. PLACE :	Sydney

THE COURT ORDERS THAT:

1. The application for an order for costs made

by the Central Land Council within 21	days
of judgment be dismissed.

2.      There be no order as to costs.

Note: Settlement and entry of orders is dealt with

in Order 36 of the Federal Court Rules.

' IN THE FEDERAL COURT OF AUSTRALIA 1

' VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985

DIVISION GENERAL )

BEIWEFJi:

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Applicant

m:

THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

First Respondent

THE ATTORNDI GENERAL FOR

THE NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

THE CENTRAL LAND COUNCIL

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

IN THE MATTER OF THE WG2UMUNGU LAND CLAIM

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH HALES DISTRICT REGISTRY	) No. G336 of 1985

DIVISION GENERAL )

IN THE MATTER of an Application for Writs of

Prohibition and Certiorari against THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE. ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Prosecutor

CORAM: Bowen, C.J., Woodward and Toohey JJ.

m: 16 September, 1986

REAAONS FOR JUDGMENT

Matters Nos. VG237 of 1985 and G336 of 1985 were both

initiated by the Aboriginal Sacred Sites Protection Authority .

( "the Authority"). The first was an application under the

Administrative Decisions (Judicial Review) Act 1977 and the other

was a claim for writs of prohibition and certiorari under s.39B of

the Judiciary Act, 1903. The Attorney-General for the Northern

Territory was joined as a respondent in both matters. The Central

Land Council ("the Land Council") was third respondent in the

claim under the Judicial Review Act and second respondent in the

claim under 4.398 of the Judiciary Act. It was joined by order of

the Court to represent the interests of Aboriginal claimants

before the Aboriginal Land Commissioner ("the Commissioner") in

connection with certain land claims which were being heard when

the question of the public interest immunity arose in relation to

material it was souqht to have produced to the Commissioner in the

course of his enquiry. Both sets of proceedings sought review of

the Commissioner's decision regarding p;cduction of this material.

The Full Court which heard these two matters together made the

following orders on 27 March 1986:

1. The application for judicial review be dismissed.

2. The order nisi for writs of prohibition and

Certiorari be discharged.

2 .

m .

. . 3 . The parties have llberty to applv on the question

of costs wlthin 21 days.

4.     In the absence of any application there be no order

as to costs.

In these two matters application was subsequently made

by the Land Council for an order for costs and arrangements were

made for this to be dealt with by those Judges constituting the

Full Court by means of written submissions. Written submissions

were received from the Land Council and from the Authority.

Belatedly a submission was received from the Attorney-General.

The Land Council submitted that the Court should apply

the ordinary rule in litigation that a party which initiates legal

proceedings and is unsuccessful should be liable for the legal

costs of the other parties to the proceedings. This rule has

often been applied in actions reviewing decisions of the

Aboriginal Land Commissioner. (See, for example, B. v. Toohev. Ex

parte Attornev-General (N.T.) (1980) 145 C.L.R. 374; Re Kearnev.

EX parte Northern Land Council (1983) 52 A.L.R. 1;

Attorney-General ( N . T . ) v. Kearnev (1985) 61 A.L.R. 55) . The Land Council submitted that the Court should make an order for costs

against the Authority. It argued that if the Land Council were

forced to pay its own legal costs the finances available for

impoverished Aboriginal people in the Northern Territory would be

diminished.

. .

. - The Authority submitted that the Court should decline to

make any order for costs in these matters. Alternatlvely, Lt

submitted that if the Courts were disposed to make an order for

costs, no order should be made against the Authority. "he

Authority's principal argument was that it achieved its main

objective in bringing the proceedings and was in reality

"successful" in that the Judges comprising the Court, in the

course of their individual reasons, by majority held that

information obtained from Aborigines in confidence and supplied to

the Authority attracted the doctrine of public interest immunity.

The Commissioner. Maurice J., had ruled in relation to the

material proposed to be produced that it did not attract public

interest immunity. He went on to decide that, if this was not so, nevertheless in balancing that interest against the interest of

the ascertainment of the true position by the Commissioner in

relation to the land claim the balance came down in favour of

disclosure. The Full Court unanimously held that the Commissioner

had not erred in performing this balancing exercise and refused to

interfere with his decision. The Authority argued that an

important question of principle had been decided in its favour

even though it did not succeed in overturning the Commissioner's

manner of performing the balancing exercise. v In future cases, the

question of claims for public interest immunity could be raised in

relation' to more appropriate documents than	in	the	present
matters.

The Authority pointed out that in the proceedings before

the Commissioner the Land Council supported the Authority's

arguments concerning public interest immunity. It submitted that

4.

the Land Council' S "about face" on the issue in the appeal S befor e

the Federal Court was relevant to the question of costs. The

nature of the Land Council's submissions to this Court is

described in the judgment of Toohey	J., reported in 65 A.L.R.	247
at pp.264-265.

The Attorney-General submitted that the Authority should

pay his costs and that there should be no order for costs in

favour of any other respondent. The Attorney drew attention to the

conduct of the parties before the Commissioner, submitting that in

seeking notices for the production of the material that led to the

question whether public interest immunity existed, he had adopted

the only course open to him in the circumstances. He referrred to

the history of the claim before the Commissioner with a view to

showing that the Land Council had been responsible for the

considerable delay and that the way in which anthropological

material was produced at the hearing of the land claim made it

necessary for the Attorney to seek the production of material from

the Authority.

Of course, it is not the costs of appearing before the

Commissioner with which we are concerned. No orders for costs are

made in that forum. These matters were mentioned in the Attorney's

submission, no doubt to show that there was nothing in his conduct of the case before the Commissioner that should prompt this Court,

5.

in dealing with the costs of the matters before it, to depart from

the ordinary rule that the unsuccessful party bears the costs of

successful parties. In the hearing before US, the Attorney was

successful in the argument that the proceedings initiated by the

Authority should be dismissed.

These are persuasive considerations for an order for

costs in favour of the Attorney, though they overlook the statements on public interest immunity made in favour of the

Authority. Importantly, they overlook another matter. The hearing

of the applications with which we are presently concerned was

followed by the hearing of matters Nos. G234 of 1985 and G344 of 1985. These were applications by the Attorney, in one case seeking judicial review of a decision by the Commissioner and in the other seeking a writ of mandamus against him. Both applications arose from the Warumungu Land Claim, the claim with which matters Nos. VG237 of 1985 and G336 of 1985 were concerned. The applications concerned the Commissioner's rulings on questions of professional privilege and the waiver thereof. It is unnecessary to refer to these questions in detail for they are considered at length in the

several reasons for judgment of the members of this Court. It is

enough to say that the Attorney was unsuccessful in both

applications. The Land Council was a respondent in both

applications and succeeded in its contention that the applications

should be dismissed.	The Authority was not a party to those
applications.

. 6.

While it is only in matters Nos. VG237 of 1985 and G336

of 1985 that an order for costs is sought, it would be unrealistic

to leave out of account the fate of the other matters which, for

all practical purposes, formed part of the same hearing. It is

true that if an order for costs were to be made in those matters

in accordance with the general rule, the Attorney would be ordered

to pay the costs of the Land Council and not of the Authority

which was not a party. But we are of opinion that as between the

Land Council and the Authority there are good reasons for

departing from the ordinary rule concerning costs. Those reasons

are to be found in what we have said concerning the stand taken by

the Land Council and the Authority before the Commissioner, the

arguments of those parties before this Court and the fate of those

arguments as reflected, not merely in the formal orders made by

the Court but in our reasons for judgment. If it were otherwise

appropriate to order the Authority to pay the costs of the

Attorney, it would, we think, be necessary to reconsider the

position of the Land Council and the Authority vis-a-vis each

other and the position of the Attorney in relation to the four

matters in which he was a party, in two of which he may be said to

have been unsuccessful.

We are of the opinion that in all the circumstances

justice would be served if there be no order for costs in any of the matters, though necessarily our order is confined to matters

Nos. VG237 of 1985 and G336 of 1985, no order for costs having

been sought in the other matters.

I . c

L

7.

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J ceb : .,,* L , dL rhis arid rhe 6 pcecedlng

pages are a true copy of the resons for

judgment herein of the Court

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