Akiba v Queensland

Case [2010] FCA 321

FEDERAL COURT OF AUSTRALIA

Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland [2010] FCA 321

Citation: Akiba on Behalf of the Torres Strait Regional Sea Claim Group v State of Queensland [2010] FCA 321
Parties: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEA CLAIM GROUP v STATE OF QUEENSLAND
File number(s): QUD 6040 of 2001
Judges: GREENWOOD J
Date of judgment: 1 April 2010
Catchwords:

NATIVE TITLE – consideration of an application to set aside a subpoena issued to the Torres Strait Regional Authority compelling production of a report – consideration of the question of whether the costs incurred by the TSRA of the motion to set aside ought to be ordered against the issuing party – consideration of the application of s 85A to that application – consideration of whether the issue of the subpoena and the motion to set aside form part of the s 61 Native Title Determination Application – consideration of the nature of the issuing party’s interest in the s 61 application – consideration of the principles to be applied in exercising the discretion under s 85A of the Native Title Act 1993 (Cth) – consideration of the source of the Federal Court’s jurisdiction – consideration of the principles to be applied in determining whether a cost order ought to be made in circumstances where there has been no hearing on the merits

PRACTICE AND PROCEDURE – consideration of an application to set aside a subpoena – consideration of whether costs incurred by the addressee in seeking to set aside a subpoena ought to be the subject of an order against the issuing party – consideration of the application of s 85A of the Native Title Act 1993 (Cth) – consideration of whether a costs order ought to be made in circumstances where there has been no hearing on the merits

Legislation: Native Title Act 1993 (Cth), ss 13(1), 13(2), 50(2), 60A(1), 61, 61(1), 69(1), 69(2), 70(1), 80, 81, 84(1), 85A(1), 85A(2), 213(2)
Federal Court of Australia Act 1976 (Cth), s 59
Federal Court Rules, Order 27, rules 2, 4, 11; Order 78, rule 3(2)
Cases cited: Akiba and Others on Behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) [2006] FCA 1173; (2006) 154 FCR 513 - considered
Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578 - considered
The Lardil Peoples v State of Queensland [2001] FCA 414; (2001) 108 FCR 453 - considered
Brownley & Others (on Behalf of the Bibila Lungutjarra (Waljen) People v Western Australia & Others [1999] FCA 1431; (1999) 95 FCR 172 - considered
O’Mara v Minister for Lands [2008] FCA 51; (2008) 167 FCR 145 - considered
De Rose v State of South Australia (No 3) [2005] FCAFC 137 - applied
Kohen v Deerubbin Aboriginal Land Council [2001] FCA 343 - considered
Ward v Western Australia (No 2) [1999] FCA 580;

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Akiba v Queensland [2010] FCA 321
Case
[2010] FCA 321
Decision Date

CaseChat Overview and Summary

In Akiba v Queensland, the parties involved were the Torres Strait Regional Seas Authority (TSRA), the Torres Strait Regional Authority, and Mr. Gamogab, a respondent with an interest in protecting and advancing traditional rights within the s 61 application. The dispute centred around the issuance of a subpoena by Mr. Gamogab seeking a report, which the TSRA argued was irrelevant and sought to set aside on various grounds. The court was tasked with deciding whether Mr. Gamogab's pursuit of the subpoena was for an improper purpose and whether the TSRA was entitled to costs under section 85A of the Federal Court of Australia Act 1976.

The court examined whether the report in question was relevant to the s 61 application and if Mr. Gamogab's actions were justified under the circumstances. The court concluded that the report, although commissioned for treaty inclusion, could contain evidence pertinent to Mr. Gamogab's interest in the s 61 application. The court also considered the TSRA's claim that Mr. Gamogab acted for an improper purpose, but found that the actions were within the scope of the application and did not amount to an improper use of the legal process.

Regarding the TSRA's claim for costs under section 85A, the court noted that the TSRA incurred expenses in responding to the subpoena and contesting its validity. The court held that the TSRA was entitled to costs associated with complying with the subpoena and preparing for the motion to set aside the subpoena, but not for the costs of filing and maintaining the notice of motion. The court's decision was based on the principle that each party must bear their own costs unless it is appropriate to order otherwise, considering the totality of the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the TSRA says that Mr Gamogab sought the report for an improper purpose. Conclusions emerging from the material and submissions filed by the parties Before addressing the consequences for the resolution of costs of the unconditional release of the report by the PNG government and Mr Gamogab’s consequent election not to pursue the subpoena and the TSRA’s acceptance that no point remained in pursuing the motion on the merits, the following conclusions emerge from the material and submissions filed by the parties. First, Mr Gamogab was at all material times a respondent with an interest as described by French J in Akiba v State of Queensland (No 2) (see [12] to [15] of these reasons) to protect and advance within the s 61 application. That interest provided the foundation for Mr Gamogab’s joinder. The limitations relating to treaty questions imposed upon his participation arising out of the Order of 16 November 2007 (see [21] of these reasons) deliberately left open the possibility that a consideration of the legitimate traditional rights and interests of PNG nationals who are shown to be traditional inhabitants of the claim area might lead to a more accurate definition of the native title rights and interests claimed by the applicant Islander communities and, therefore, the determination in the s 61 application could protect the rights and interests of a PNG traditional inhabitant by limiting the scope of the rights and interests of the Torres Strait Regional Seas Claim applicant Islander communities (see [14] and [15] of these reasons). Therefore, the report of Dr Murphy, although commissioned by the governments of Australia and PNG (and the TSRA in a facilitative role) and directed to claims by Western Province village inhabitants for treaty inclusion as “traditional inhabitants”, was, it seems from para 32 of the draft statement of Dr Murphy, based on “research” that “considered the various claims and counterclaims being put forward by Papua New Guineans” of a number of villages (and their inhabitants) related to or touching upon a part or parts of the area of the Torres Strait Regional Seas Claim, albeit in aid of the treaty inclusion issue. It seems to follow that Dr Murphy’s research of traditional practices forming the basis of the claims and counterclaims of those village inhabitants, in and in connection with the claim area, may arguably reflect evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding and thus represents evidence potentially relevant to Mr Gamogab’s interest: s 55 Evidence Act 1995 (Cth). Certainly, I am not able to conclude that the report was not relevant to a question in issue in the s 61 claim. Therefore, it further follows that I cannot conclude that Mr Gamogab acted for an improper purpose in seeking leave to issue the subpoena and nor can I affirmatively conclude (and I would not do so as a matter of inference) that Mr Gamogab was using the s 61 application and subpoena processes available to him within it, as a vehicle for advancing a treaty claim for Mr Gamogab and the inhabitants of Kupere Village, as French J apprehended might occur (see [16] and [17] of these reasons).

Ratio Decidendi

Legal Principle Established

I am satisfied that s 85A applies to the application for leave to issue the subpoena, service of the subpoena and the notice of motion to set aside the subpoena. The operation of s 85A Section 85A operates to remove any ground of expectation that unless “cause” is shown for some other order to be made, costs will usually follow the event in accordance with settled principle guiding the exercise of discretion to award costs under general statutory provisions conferring such a power: Ward v Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305 at 312 [33] per Lee J; Davidson v Fesl (No 2) [2005] FCAFC 274 at [9] per French and Finn JJ. As Lee J observed in Ward at [34], the discretion of the Court under s 85A to award costs is “not confined”. The matters to be taken into consideration in making a costs order are left by s 85A to the Court as a “discretion to be exercised judicially”. However, the starting point is that each party “must bear his or her own costs” (the language of s 85(1)) unless the Court determines that it is appropriate in all the circumstances to make an order for costs. The circumstances informing whether the Court will do so are not confined to unreasonable acts or omissions on the part of a party sought to be burdened with a costs order. Plainly enough, one express basis upon which the Court may order a party to bear costs is that the party has engaged in unreasonable conduct within s 85A(2) of the Act. The TSRA’s essential position The TSRA makes two essential points in relation to the application of s 85A. First, the TSRA says it was put to cost and expense in responding to the subpoena and was entitled to examine the relevance of the report to the interest Mr Gamogab sought to advance in the s 61 application. It says that those costs include the costs of obtaining legal advice as to its rights and obligations regarding the subpoena, conferring with the Commonwealth to determine its position in relation to the Commonwealth assuming the conduct of the objection to produce the report on the ground of public interest immunity, the costs of conferring with Mr Gamogab’s solicitors and the legal representatives of other parties to the s 61 application, the costs of producing the report to the Court and the legal costs associated with the hearing before Finn J on 27 October 2008 including briefing counsel to appear and objecting to further production of the report: Chapman v Luminis Pty Ltd (No 3) [2000] FCA 1120; (2000) 104 FCR 368; Australian Prudential Regulation Authority v Rural and General Insurance Limited [2004] FCA 933; Charlick Trading Pty Ltd v Australian National Railways Commission (Charlick Trading v ANRC) [1997] FCA 674; (1997) 149 ALR 647. These costs, it says, do not include the costs associated with filing and maintaining the notice of motion to set aside the subpoena. The TSRA also contends for the propositions at [66]. Under Order 27, rule 11 of the Federal Court Rules, the Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena, and an addressee of a subpoena who is a non‑party is entitled under Order 27, rule 11 to an award of their solicitor and client costs reasonably incurred in respect of the subpoena: Chapman v Luminis Pty Ltd (No 3) (supra) per von Doussa J at [28] to [33] and particularly at [34]. Compliance with a subpoena extends to making lawful objection to the subpoena (Chapman v Luminis at [34]) but not to proceedings to set aside the subpoena: Chapman v Luminis at [33]; Charlick Trading v ANRC per Mansfield J at 651. Order 27, rule 11 encompasses reasonable expenses incurred in seeking advice as to the validity of the subpoena, including whether to comply with it at all or in part; correspondence or attendances on a party issuing a subpoena; advice as to whether documents are confidential or properly subject to claims for privilege; correspondence and attendances and negotiations with the issuing party as to the terms upon which access to the document should be permitted by the Court including the negotiation of undertakings as to confidentiality; attendances in Court when the subpoena is called on or stood over including attendances to make out a claim that the document subpoenaed should be protected from unrestricted access due to its character; and steps to ensure that confidentiality undertakings proposed to be given, have in fact been properly given: Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284 per Lockhart J at 285 and 286; Charlick Trading v ANRC at 649; Chapman v Luminis at [28] to [30]. Since the TSRA has played no role in the s 61 application in its “own right” and is a party solely on the basis of its broader statutory responsibilities as a representative body under the Native Title Act, the TSRA should be considered as a non‑party in any real sense and thus the TSRA ought to recover, on a solicitor/client basis, the costs of a motion to obtain an award of costs for complying with the subpoena, the costs of the preparation of a bill of taxation and the costs of attending to taxation.