Anderson v Jali Local Aboriginal Land Council (No 2)

[2009] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:	Anderson v Jali Local Aboriginal Land Council (No 2) [2009] NSWLEC 222
PARTIES:	APPLICANT: Susan Anderson RESPONDENT: Jali Local Aboriginal Land Council
FILE NUMBER(S):	40051 of 2009
CORAM:	Biscoe J
KEY ISSUES:	COSTS :- class 4 proceedings - whether proceedings were brought in the public interest - whether Court should not make costs order against unsuccessful applicant
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Land and Environment Court Rules 2007, r 4.2(1)
CASES CITED:	Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162
DATES OF HEARING:	3 December 2009
EX TEMPORE JUDGMENT DATE:	3 December 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr A. Oshlack (agent) SOLICITORS: N/A RESPONDENT: Mr M. Wright (barrister) SOLICITORS: Baker, Mannering & Hart

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 December 2009

40051 of 2009

SUSAN ANDERSON v JALI LOCAL ABORIGINAL LAND COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: The successful respondent in these proceedings seeks an order for costs against the applicant.

2 The proceedings are in class 4 of the Court’s jurisdiction where costs normally follow the event. There is provision in the Land and Environment Court Rules 2007 r 4.2(1) that the Court may decide not to make an order for the payment of costs against an unsuccessful applicant if it is satisfied that the proceedings have been brought in the public interest. The applicant’s submission, as I understand it, is that no costs order should be made against her because the proceedings were brought in the public interest in that they concerned the extent and scope of the jurisdiction of the Court to hear disputes regulated under the Aboriginal Land Rights Act 1983. The applicant is an Aboriginal person. The respondent is a local Aboriginal land council.

3 The applicant claimed declarations that she says were designed to establish that she was the rightful owner of Cottage 23, Cabbage Tree Island. I dismissed the proceedings: Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162. The declarations sought by the applicant are set out at [4]. I held that this Court had no jurisdiction over the claims.

4 In case I was in error in relation to jurisdiction, I proceeded to determine each of those claims adversely to the applicant. The first claim was that the respondent never acquired the cottage for residential accommodation for Aboriginal persons and that she has been the owner of the cottage since its construction, notwithstanding that the respondent was the registered proprietor. The second claim was that the residential tenancy agreement between the applicant as tenant and the respondent as lessor was void. The third claim was that the respondent’s notice of termination of the residential tenancy agreement was void because she was denied procedural fairness. There was also a claim that, in any event, the proceedings should be stayed or adjourned until certain Federal Court proceedings were determined.

5 I do not think that the proceedings should be viewed as having been brought in the public interest. If they were, I do not think that there were special circumstances sufficient to attract the exercise of the costs discretion in favour of the applicant. The proceedings were essentially concerned with the applicant’s private rights in relation to the cottage in which she resided. It is unnecessary to go further and descend into the detail of the applicant’s conduct of the litigation, which the respondent suggests would constitute circumstances unfavourable to the exercise of the costs discretion in her favour.

6 The Court orders the applicant to pay the respondent’s costs. The exhibits may be returned.