Attorney-General for N.T. of Australia v The Hon. a Holding

[1986] FCA 517

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I N THE	FEDERAL	COURT OF	AUSTRALIA	l
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NEW SOUTH WALES DISTRICT	REGISTRY	)	NO.	G.	435 of 1986
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GENERAL D I V I S I O N l

BETWEEN: THE ATTORNEY-GENERAL

FOR THE NORTHERN

TERRITORY	OF	AUSTRALIA
A p p l i c a n t

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AND: THE HONOURABLE ALLAN , -

CLYDE HOLDING, MINISTER

FOR ABORIGINAL AFFAIRS

First R e s p o n d e n t

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Second R e s p o n d e n t

AND: I N THE MATTER OF THE

ALLIGATOR RIVERS TAGE

I1 LAND CLAIM

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CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	31 OCTOBER

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2.

THE COURT ORDERS THAT:

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1. The Application is dismissed.

Note :	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules. I

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NOT FOR DISTRIBUTION

I N THE	FEDERAL	COURT O F AUSTRALIA	1	..	.	-.
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NEW SOUTH WALES DISTRICT	REGISTRY	1	N o .	G . 4 3 5	of	1986
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GENERAL D I V I S I O N 1 I . . ,

BETWEEN: THE ATTORNEY-GENERAL

FOR -THE NORTHERN

TERRITORY	OF	AUSTFGLIA
A p p l i c a n t

I.

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AND: THE-HONOURABLE ALLAN

CLYDE HOLDING, MINISTER

FOR ABORIGINAL AFFAIRS

First R e s p o n d e n t

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Second	R e s p o n d e n t	i"
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AND: I N THE MATTER OF THE

ALLIGATOR RIVERS TAGE

I1 LAND CLAIM

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	31 OCTOBER 1986

EXTEMPORE REASONS FOR JUDGMENT

2.

I have been informed this morning that the Minist'er

yesterday decided to revoke the decisions the subject of the

application for review and that e has issued a public

statement inviting representations from all those who are

interested in the matter as to the decisions which he ought to

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take in regard to the implementation, in respect	of the	I
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relevant areas,	of the recommendation	of Toohey J as	' b.
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Aboriginal Land Commissioner. There has been handed to me a copy of a letter from the Australian Government Solicitor,

written on behalf of the Minister, to the solicitors for the

applicant -- dated yesterday -- in which the decisions are set

out and further submissions are invited.

Counsel for the applicant suggests that,

notwithstanding those decisions by the Minister, I should make

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an order setting aside his previous decisions.	I take the	. I
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view that the Court would be justified in setting aside a

decision of a Minister, or any other decision-maker under an

enactment, only if first satisfied that the decisions were

invalid in point of law. Invalidity has not been conceded by

counsel for the respondent and there is nothing before me to

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indicate that the decisions under attack are invalid. I

hasten to add that this does not indicate any view as to

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whether or not it might have been possible for the applicant

in these proceedings to put material before the Court which.

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would indicate invalidity. I have no opinion one way or the

other as to whether invalidity could have been shown in these

proceedings.

4 .

Having regard to the fact that the decisions are not

to be acted upon, it would be a waste of the Court's time and

an unnecessary expense, to the parties to embark upon a hearing

of a matter which is now entirely academic. Consequently, I

do not accede to the suggestion that I should make a formal

order in regard to the decisions. I think that the

appropriate order is to dismiss the Application.

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Both parties claim orders in their favour for costs.	f
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On behalf of the applicant Mr Barret says that the Minister' :

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decisions are, in effect, a concession that he would have

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failed in these proceedings: and consequently that his client

should have the cost o f the proceedings. On behalf of the

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respondent, Mr Sher QC.points to the history of the matter

and, in particular, the fact that it was not until after the

subject decisions were made that the Northern Territory

Government evinced any interest in making further

representations. He says that, from the time of the

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Minister's initial decision -- made on 15 March 1983 -- to

recommend these grants until after the decisions the subject

of these proceedings, there was no representation from the

Northern Territory Government.

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I can understand that the Worthern Territory

Government would have thought that there was no point in

making representations up until the date of the decision of

the High Court	on 31 July 1986,	by which it was determined
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finally that the Minister's earlier decision was invalid.

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Until that date, the Minister was taking and maintaining the

position that he had made a valid decision to proceed with a

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recommendation for a grant. Consistently with that he may

-have not been prepared to take into account further matters

put before him by the Northern Territory. At least it was

reasonable for the Northern Territory Government to act upon

that assumption. However, after 31 July 1986, it must have

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been obvious to everybody concerned that the Minister would

have to reconsider the matter. It is, under those

circumstances, surprising that nothing was put before the

Minister between that date and	25 September 1986 when he made
the decisions under attack.

I think that the Minister is entitled to point to

that matter as indicating that e would not reasonably have

expected that the Northern Territory Government would wish to

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put further matters before him, or that there would be any

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attack on his decisions because of his failure to invite further representations from the Northern Territory Government.

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/- Notwithstanding this, if I had come to the conclusion

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that there was material to indicate that the decisions were

clearly invalid, and that the Ninister had revoked the

decisions simply in anticipation f a court holding

invalidity, I would take the view that the applicant should

have his costs. I do not think that a decision-maker ought to

be allowed to deprive an applicant	of costs merely by
conceding to the inevitable.

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However, in this case it is far from clear as to what

the position would have been had the matter been fully

litigated. I take into account the strong probability that

the Minister was influenced by political considerations, in

the sense of wishing to maintain harmonious relationships with the Northern Territory Government. He may have taken the view

that, whatever his prospects in court, it would be desirable

to allow the Northern Territory Government to put whatever it

wished before him.

I do not think that there should be an order for

costs in favour of either party. In relation to the applicant

such an order would only be appropriate where it is clear that

the applicant would have been likely to be successful. In

relation to the respondent it is my view that it would be

appropriate to,order the applicant to pay the costs only where

the Court could reach a clear view that the application would

have failed. As I have said, it is not possible to forecast

the outcome of the proceedings.

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6.

I also take into account the fact that the grounds of

attack have been expanded considerably in very recent times.

To the extent that the Minister has been influenced by matters

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which have been raised for the first time either yesterday or

on Wednesday this should tell against the applicant. In my

view the fair course is to dismiss the Application and to make

no order as to costs. I so order.

I certify this and the five (5)

preceding pages to be a true copy of

the Reasons-for Judgment of

his Honour Mr Justice Wilcox.

Date: 14 November 1986

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Counsel for the Applicant: Mr JD Barrett

Solicitors for the Applicant:	-	Freehill, Hollingdale & Page as Agents for the Crown Solicitor for the
Northern Territory of
Australia
Counsel for the Respondent:	Mr J L Sher QC with Mr D M Yates
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	31 October 1986