Baird v The Coroner of the Northern Territory and Anor and Puruntatameri v Territory Coroner and Anor (No. 2) - [2021] NTSC 13

CITATION:Baird v The Coroner of the Northern Territory & Anor and Puruntatameri v Territory Coroner & Anor (No. 2) [2021] NTSC 13
PARTIES:BAIRD, Rosemary Therese

v
THE CORONER OF THE NORTHERN TERRITORY
and
PURUNTATAMERI, Constance May
AND
PURUNTATAMERI, Constance May
v
THE TERRITORY CORONER

and

BAIRD, Rosemary Therese

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NOS:2020-02678-SC and     2020-02763-SC
DELIVERED ON:  22 February 2021
HEARING DATE:  On the papers
JUDGMENT OF:  Barr J
CATCHWORDS:

COSTS – Deceased 15 year old youth – Dispute between biological mother and adoptive mother/kinship carer over right to arrange funeral and bury the deceased – Cultural considerations – Practical considerations – Order made previously that body of the deceased be delivered to adoptive mother/kinship carer for funeral and burial – Costs – Successful party contends general rule should apply – Costs should follow the event – Unsuccessful party resists costs order – submits that she was defending the cultural imperatives of her people’s culture in relation to burial ceremonies – Contends that appropriate order is ‘no order as to costs’ – Unsuccessful party ordered to pay the successful party’s costs on the standard basis to be taxed in default of agreement
Oschlack v Richmond River Council (1998) 193 CLR 72; Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67, referred to.
REPRESENTATION:
Counsel:
Rosemary Baird:  J Tippett QC
Constance Puruntatameri:           I Grant
NT Coroner:  B Wild
Solicitors:
Rosemary Baird:  Maley Barristers and Solicitors
Constance Puruntatameri:           North Australian Aboriginal Family Legal Service
NT Coroner:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Bar2103
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Baird v The Coroner of the Northern Territory & Anor and Puruntatameri v Territory Coroner & Anor (No. 2) [2021] NTSC 13
No. 2020-02678-SC and 2020-02763-SC

BETWEEN:
ROSEMARY THERESE BAIRD

Plaintiff
AND:
THE CORONER OF THE NORTHERN TERRITORY

First Defendant
AND:
CONSTANCE MAY PURUNTATAMERI
Second Defendant
AND BETWEEN:

CONSTANCE MAY PURUNTATAMERI

Plaintiff
AND

THE TERRITORY CORONER

First Defendant
AND

ROSEMARY THERESE BAIRD

Second Defendant

CORAM: BARR J

REASONS FOR DECISION IN RELATION TO COSTS
(Delivered 22 February 2021)

On 28 July 2020, Rosemary Therese Baird (“Rosemary”) as plaintiff filed an originating motion against the Northern Territory Coroner as defendant in proceeding 2020–02678–SC seeking an order, in relation to the deceased youth, R, that the Coroner issue a certificate permitting the disposal of the body, and that the body be delivered into the possession of the plaintiff for burial.
On 6 August 2020, Constance May Puruntatameri (“Constance”) as plaintiff filed an originating motion against the Northern Territory Coroner in proceeding 2020–02763–SC seeking (but in her favour) identical orders to those sought by Rosemary, and in addition an order that she be joined as a party to the proceedings referred to in [1] above.
On 11 August 2020, in an attempt to consolidate proceedings, Rosemary as plaintiff filed an amended originating motion in proceeding 2020–02678–SC against the Northern Territory Coroner as first defendant and against Constance as second defendant. In addition to the orders originally sought, Rosemary sought orders that she have the carriage of the funeral of the deceased, that the deceased be buried at a cemetery in Darwin and that there be a permanent injunction restraining Constance from burying the deceased and/or interfering with the funeral arrangements made by Rosemary.
On 12 August 2020, Constance as plaintiff filed an amended originating motion in proceeding 2020–02763–SC. She sought additional orders, inter alia, that the body of the deceased be released to her in order to enforce “the legal obligation to bury a child resting with the biological parents.”
On 13 August 2020, Luppino AsJ gave retrospective leave for the joinder of Constance in proceeding 2020–02678–SC. His Honour also gave retrospective leave for the joinder of Rosemary in proceeding 2020–02763–SC.
The two sets of proceedings were not formally consolidated but were heard by me together on 25 September 2020. I decided the matter in dispute in favour of Rosemary and published reasons to the parties on 13 October 2020.[1]
On 16 October 2020, I made orders, inter alia, as follows:
In proceeding 2020–02678–SC:
1.After issue of the certificate referred to in s 17(1) Coroners Act 1993 (NT), the body of the deceased be delivered into the possession of Rosemary Therese Baird to arrange the funeral and burial of the deceased.
2.Liberty to apply in relation to injunctive relief.
3.The question of costs is reserved. …
In proceeding 2020–02763–SC:
1.That the plaintiff’s claim be dismissed.
2.The question of costs is reserved, to be dealt with at the same time as the question of costs in proceeding 2020–02678–SC.
Rosemary subsequently sought an order that Constance pay her costs. In written submissions filed on her behalf, Mr Tippett QC contends that (1) Rosemary’s conduct “has at all times been entirely appropriate”; (2) costs follow the event regardless of the nature of the litigation or the circumstances of the unsuccessful party; and (3) there are no grounds for departure from the general rule in this case.
Mr Tippett relies on the principle re-affirmed by the High Court in Northern Territory vSangare.[2] He also refers to the decision of the Court of Appeal in Monk v Commonwealth of Australia (No. 2).[3]
The issue in the Sangare appeal was whether, in the exercise of the judicial discretion as to costs, the impecuniosity of the unsuccessful party was a consideration that, without more, might justify a decision to deny the successful party its costs. The Northern Territory Court of Appeal had declined to award costs to a wholly successful respondent on the basis that the appellant’s financial situation was such that any costs order would be futile. The High Court held that it was erroneous for the Court of Appeal to decline to make the costs order sought because of the perception that the award would be futile.[4] It held that the decision of the Court of Appeal could not be supported as an exception to the general principle that a wholly successful party should be entitled to an order for costs.[5]
The Northern Territory Court of Appeal subsequently applied the Sangare decision in Monk v Commonwealth of Australia (No. 2).[6] In that case, an unsuccessful plaintiff and subsequently unsuccessful applicant for leave to appeal was without means and argued that he would be unable to satisfy any order for costs. He was nonetheless ordered to pay the respondent’s costs of and incidental to the proceedings at first instance and the application for leave to appeal.
The solicitors acting for Constance submit that the appropriate order in relation to costs is ‘no order as to costs’ within the meaning of Supreme Court Rule 63.02. In other words, they contend that each party should pay her own costs. The submission is not based only on the ground of impecuniosity/futility; it is submitted that there are a number of special circumstances in this case which justify the Court exercising its discretion to deviate from the general rule.
The submissions made on behalf of Constance may be distilled as follows:
1.The decision was “not due to any legal principle put forward by the plaintiff, contested by [Constance]”, but rather was decided on the weight of evidence.
2.Her arguments were strong, not ‘without merit’.
3.The actions of the first defendant, the Northern Territory Coroner, “forced the plaintiff to litigate”.
4.Constance actively took all steps to avoid litigation by way of mediation.
5.A costs order against Constance would cause her “severe financial hardship”.
6.Constance litigated to defend “the cultural imperatives of her people’s culture in relation to the burial ceremonies required by culture for her biological son”.
In relation to the first and second contentions, many if not most civil matters are decided “on the weight of evidence”, notwithstanding that the unsuccessful party may have presented an argument not lacking in merit or even a strong argument. That is no basis to deny costs to the successful party. Moreover, it is irrelevant to the issue of costs whether a matter is decided on purely legal grounds or purely factual grounds or a combination of legal grounds and factual grounds. Finally, as noted in the decision, counsel for Constance raised a number of legal arguments to support her claims.[7] Those arguments were unsuccessful.
As to the third contention, the suggestion seems to be that the actions of the Coroner were instrumental not only in causing Rosemary (the plaintiff) to commence proceedings, but also made it necessary for Constance to herself commence a similar proceeding and, being fully aware of Rosemary’s claim, continue with her own proceeding and continue to defend Rosemary’s claim. In my opinion, the relevance of anything said or done by an officer of the Office of the Coroner is irrelevant to the issue of costs, at least from the time when Rosemary commenced proceedings on 28 July 2020.
As to the fourth contention, the fact that the parties unsuccessfully mediated, whether once or twice, is not relevant. If the successful plaintiff had refused to engage in pre-commencement mediation, it might well have told against her in relation to the issue of costs. However, that is not the case here. The parties (that is, both Rosemary and Constance) engaged in mediation. I infer that each woman attempted to resolve her concerns without the need to litigate. The accompanying submission to the fourth contention, that “the plaintiff chose not to continue to pursue mediation further but to litigate”, suggests that Rosemary was somehow remiss in not engaging in mediation for a third time. However, pre-commencement mediation is not to be seen as a process to be repeated endlessly until an elusive agreement is finally achieved. In the circumstances of this case, further mediation would probably have achieved very little. For example, there is no evidence or even suggestion that, at a third mediation, Constance would have conceded any of the matters which she argued at trial. Once it became clear that the matter had not resolved after the second mediation, Constance had a choice as to whether or not to engage in litigation. She chose to engage. Moreover, she unnecessarily enlarged the litigation by commencing and continuing a second proceeding.
As to the fifth contention, that a costs order should not be made against Constance because she would be placed “in severe financial hardship”, financial hardship is an irrelevant consideration, as the High Court made clear in Sangare. I refer to the summary of that case in [10] above. In considering the question whether in the exercise of the costs discretion the impecuniosity of the unsuccessful party is, without more, a proper basis to deny the successful party its costs, the High Court stated:[8]
… In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
It may be acknowledged that the observations of the High Court in Sangare and the observations of the Northern Territory Court of Appeal in Monck were made in the context that both unsuccessful parties, against whom cost orders were ultimately made, had been plaintiffs in proceedings at first instance. Mr Sangare had sued in defamation, unsuccessfully, and Mr Monck had sued in negligence, also unsuccessfully. Both had initiated unmeritorious proceedings. Different considerations might arise in the case of an unsuccessful defendant or respondent. Nonetheless, the usual order that costs follow the event is based on the underlying principle that a costs order is made to indemnify a successful party against that party’s liability for legal costs which the party was only required to pay because of the unsuccessful opposing party’s engagement in litigation. That engagement includes both engagement as a plaintiff asserting a groundless cause of action and as a defendant resisting a justified cause of action.
As to the final contention, that Constance litigated to defend the imperatives of her people’s culture in relation to the burial ceremonies required for her biological son, I make the simple observation that cultural considerations – raised by both parties – were not the key to the resolution of the issue between them. Although I carefully considered the cultural and spiritual sensitivities of Constance and those members of her family who claimed the duty and right to bury the deceased on Melville Island, I did not consider that the outcome of the case depended on the strength of the opposing parties’ cases under “cultural law”. Rather, I made the finding that, for all practical purposes, Rosemary had become and then remained the mother of the deceased to the time of his death. On the consequent balancing of considerations, I took into account that Rosemary had made detailed funeral plans and had chosen a place of burial where family and friends in Darwin, Palmerston, Bathurst Island and Melville Island would be able to visit the place of burial if they so wished. In that context, I noted that visiting the proposed place of burial in Munupi Clan Country on Melville Island would be very difficult for everyone except Constance and her family.[9]
Further, in relation to the fact that Constance’s motives may have moved beyond the purely personal and extended to litigating on behalf of a wider clan or tribal group, in support of its traditional funerary practices, I make the following observations. First, no authority is cited in support of the proposition that such wider motivation is a proper basis to relieve Constance from an adverse costs order. Second, to the extent that the litigation might be characterised as akin to ‘public interest litigation’, that characterisation of itself would not warrant departure from the general rule that costs follow the event. There is no statutory regime establishing a relevant public purpose and/or facilitating public involvement and participation in litigation of this kind.[10] Third, no matter how well-intentioned Constance may have been to uphold the interests of her people and her culture, Rosemary incurred significant costs in achieving the outcome she justifiably sought. Although Rosemary is an Aboriginal woman, she did not have the support of a publicly funded legal service such as the North Australian Aboriginal Family Legal Service, which at all times acted for Constance.
I consider that it is just in all the circumstances that Rosemary be indemnified by the making of the usual order as to costs.
Conclusion
I would make orders in relation to costs as follows:
In proceeding 2020 – 02678 – SC:
That the second defendant pay the plaintiff’s costs on the standard basis, such costs to be taxed in default of agreement.
In proceeding 2020 – 02763 – SC:
That the plaintiff pay the second defendant’s costs on the standard basis, such costs to be taxed in default of agreement.
To the extent that it is necessary, I certify fit for senior counsel.
The lawyers acting for Rosemary should file, in each proceeding, a draft of the final orders, consistent with [22], for settling by the Registrar.
I note finally that no costs orders were sought by or against the Northern Territory Coroner in either proceeding. As previously noted, the Coroner appeared by counsel at the commencement of the hearing and indicated that he would abide this Court’s decision.[11] The Coroner’s position was similar to that of an interpleader. No costs order should be made against him in the circumstances.
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[1]Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67.

[2]Northern Territory v Sangare [2019] HCA 25; 265 CLR 164.

[3]Monk v Commonwealth of Australia (No. 2) [2020] NTCA 1.

[4] Ibid, at [34].

[5] Ibid, at [36].

[6]Monk v Commonwealth of Australia (No. 2) [2020] NTCA 1.

[7] Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67: at [32] – [36] in relation to the ‘next of kin’ argument; at [38] – [49] in relation to the ‘senior next of kin’ argument; and at [50] – [51] in relation to the argument that the Coroner had already made a decision to release the body to Constance.

[8]Northern Territory v Sangare [2019] HCA 25 at [27].

[9]Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67 at [30].

[10]Cf. Oschlack v Richmond River Council (1998) 193 CLR 72, where costs fell to be considered under New South Wales legislation which, in the judgment of Kirby J at [134], was such as to “permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court”. The result was that “a rigid application of the compensatory principle in costs orders would be completely impermissible … it would discourage, frustrate and even prevent the achievement of Parliament’s particular purposes”. Gaudron and Gummow JJ in their joint judgment at [43] concluded that there had never been any absolute proposition that the sole purpose of a costs order was to compensate one party at the expense of another. Their Honours determined at [45] that the costs discretion in relation to environmental matters in the Land and Environment Court was not to be narrowly construed: “… it is applicable to a new species of litigation [under s 123 of the EPA Act] and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation”. They held that the trial judge was justified in ordering a departure from the usual order as to costs.

[11]Baird v The Coroner of the Northern Territory & Puruntatameri & Puruntatameri v Northern Territory Coroner and Baird [2020] NTSC 67 at [51].