Bullen v State of Western Australia (No 2)
[2010] FCA 1206
FEDERAL COURT OF AUSTRALIA
Bullen v State of Western Australia (No 2) [2010] FCA 1206
Citation: Bullen v State of Western Australia (No 2) [2010] FCA 1206 Parties: ELAINE BULLEN AND OTHERS
v
STATE OF WESTERN AUSTRALIA AND OTHERSFile number: WAD 185 of 2009 Judge: SIOPIS J Date of judgment: 29 September 2010 Catchwords: COSTS – the applicant sought a declaration which called for a construction of provisions in the Native Title Act 1993 (Cth) – whether the Court should apply the spirit of s 85A of the Native Title Act in determining the question of costs of the application. Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Native Title Act 1993 (Cth) s 85ACases cited: Bullen v State of Western Australia [2010] FCA 900
Lardil Peoples v Queensland (2001) 108 FCR 453
Murray v Registrar of the National Native Title Tribunal [2003] FCA 45
Edwards v Santos Limited (No 2) [2010] FCA 238
Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402Date of hearing: 29 September 2010 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr D Yarrow Solicitor for the Applicant: Goldfields Land and Sea Council Aboriginal Corporation Counsel for the First and Second Respondents: Mr GJ Ranson
Solicitor for the First and Second Respondents: State Solicitor for Western Australia
Counsel for the Third Respondent: Mr PD Quinlan
Solicitor for the Third Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 185 of 2009
BETWEEN: ELAINE BULLEN AND OTHERS
ApplicantAND: STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
29 SEPTEMBER 2010
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Each party is to bear their own costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 185 of 2009
BETWEEN: ELAINE BULLEN AND OTHERS
ApplicantAND: STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent
JUDGE:
SIOPIS J
DATE:
29 SEPTEMBER 2010
PLACE:
PERTH
REASONS FOR JUDGMENT
The persons comprising the applicant (the applicant) in a native title determination application were successful in their claim against the respondents for a declaration in relation to the construction of certain provisions in the Native Title Act 1993 (Cth) (the Act) (Bullen v State of Western Australia [2010] FCA 900). The applicant now claims that the respondents should pay the costs of the application.
Section 85A of the Act provides as follows:
(1)Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
Unreasonable conduct
(2)Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.
In the case of Lardil Peoples v Queensland (2001) 108 FCR 453 at [157], Dowsett J (with whom French J, as his Honour then was, agreed on this point) found that s 85A applied only to a proceeding where a determination of native title was sought. The parties accepted that the declaration sought, and obtained by the applicant, did not fall within that category, and that the proceeding brought by the applicant, therefore, was not one to which s 85A of the Act applies.
The question of costs, therefore, has to be determined by reference to the exercise of the discretion given to the Court under s 43 of the Federal Court of Australia Act 1976 (Cth).
In support of their contention that there should be no order as to costs, the respondents referred to Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 (Murray). The respondents contended that, as the Court did in Murray, I should exercise the Court’s discretion in respect of costs, by applying the “spirit of s 85A of the Act”. In that case, Marshall J observed at [8]-[9]:
The proceeding was not one under the Native Title Act 1993 (Cth) but it did involve a consideration of the meaning of important provisions in that legislation concerning the entering into and the registration of ILUAs. The judgment of 20 December 2002 dealt with issues relevant to the scope and meaning of s 24CD of the Native Title Act, amongst other matters. It was the first one of its kind to do so. If the application had have been one commenced under the Native Title Act, the Court would have been required to consider the provisions of s 85A of that Act…
Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate “to follow the spirit of subs [85A(1)] of the Act”; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O’Loughlin J.
Counsel for the applicant, contended, however, that the relationship of the proceeding to the content of the Act, was just one factor to be taken into account in the exercise of the discretion. In support of the applicant’s contention that the respondents should pay the costs of the application, counsel referred to the decision of Edwards v Santos Limited (No 2) [2010] FCA 238 (Edwards), a case which, said counsel, bore some similarities to this case. Counsel contended that s 85A also had no application in that case and that, Logan J, after having taken into account a number of considerations, in exercise of the Court’s discretion, awarded costs to the successful party which - in that case – was the respondent.
In my view, however, the circumstances of this case are very different to the circumstances in the Edwards case. Logan J found that the applicant in that case had invoked the jurisdiction of this Court, simply for the purposes of obtaining an advisory opinion and had, thereby, invoked the jurisdiction of the Court in a colourable manner. Such a finding in respect of an applicant’s conduct is unusual and, obviously, that factor weighed strongly in the exercise of his Honour’s discretion to award costs against the applicant.
However, in this case, by contrast, there was a bona fide dispute which gave rise to arguable issues on both sides, which proved difficult to resolve.
I note that the Full Court on the appeal from the first instance decision of Marshall J, in Murray, endorsed his Honour’s approach to the question of costs at first instance (Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402 at [28]).
I accept the respondents’ contention that, as in Murray, the fact that the issues in this case raised for consideration the correct interpretation of the Act, weighs heavily in favour of applying the Murray approach. Accordingly, it is appropriate, in my view, to apply the spirit of s 85A of the Act to the question of costs in this case.
Counsel for the applicant, however, submitted that even if I was to come to the view that it was, otherwise, appropriate to apply the spirit of s 85A of the Act, nevertheless, I should take into account a further consideration. This is that the State of Western Australia had declined an offer to negotiate with the applicant for an Indigenous Land Use Agreement, which would validate a grant of the mining lease in issue in this proceeding. The making of such an agreement, said counsel for the applicant, would have rendered the proceeding otiose. Further, said the applicant’s counsel, the respondents had declined to agree to consent orders for mediation of the application.
Counsel for the applicant went on to contend that, in dealing with the question of costs, I should treat the conduct of the respondents, and, in particular, the State of Western Australia, as being analogous to them having unreasonably declined to enter into a compromise agreement; and I should apply the principles relating to the making of Calderbank offers.
I do not consider that this is an appropriate analogy. In any event, costs will only be awarded against a Calderbank offeree that ultimately loses, if that party has acted unreasonably in declining to accept the Calderbank offer. I do not find that the respondents acted unreasonably in declining to accept the offers made by the applicant because, as I have said, this case was a difficult case to resolve, with good arguments on both sides. In particular, I do not find that the conduct of the State in declining to enter into the negotiations for the Indigenous Land Use Agreement, was unreasonable conduct on its part.
In those circumstances, I am of the view that each party should bear their own costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 4 November 2010
0
5
0