Ellis v Central Land Council (No 2)

[2019] FCAFC 11

FEDERAL COURT OF AUSTRALIA

Ellis v Central Land Council (No 2) [2019] FCAFC 11

Appeal from:	Ellis v Central Land Council [2018] FCA 35
File number:	NTD 15 of 2018
Judges:	BARKER, GRIFFITHS AND WHITE JJ
Date of judgment:	5 February 2019
Catchwords:	COSTS – determination of costs – where the parties agreed as to how costs should be awarded save for the issue whether the second and sixth respondents should be awarded their costs in the appeal and cross-appeal – where the second and sixth respondents added little by way of submissions – Held: the second and sixth respondents should bear their own costs of the appeal and cross-appeal
Cases cited:	Ellis v Central Land Council [2019] FCAFC 1
Date of hearing:	Determined on the papers
Date of last submissions:	1 February 2019
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Appellants and First, Second and Third Cross-Respondents:	Mr N M Wood with Mr J E Hartley
Solicitor for the Appellants and First, Second and Third Cross-Respondents:	Midena Lawyers
Counsel for the First and Fifth Respondents and Cross-Appellants:	Mr S Glacken QC with Mr C P Young
Solicitor for the First and Fifth Respondents and Cross-Appellants:	Central Land Council
Counsel for the Second and Sixth Respondents and Fourth and Seventh Cross-Respondents:	Mr R M D Levy
Solicitor for the Second and Sixth Respondents and Fourth and Seventh Cross-Respondents:	Solicitor for the Northern Territory

ORDERS

NTD 15 of 2018

BETWEEN:

MARIE ELENA ELLIS
First Appellant

ROSEANNE PHILOMENA ELLIS
Second Appellant

IMWERNKWERNHE COMMUNITY LIMITED (ACN 161 185 100)
Third Appellant

AND:

CENTRAL LAND COUNCIL

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

MACDONNELL REGIONAL COUNCIL (and others named in the Schedule)

Third Respondent

AND BETWEEN:

CENTRAL LAND COUNCIL (and another named in the Schedule)

First Cross-Appellant

AND:

MARIE ELENA ELLIS (and others named in the Schedule)

First Cross-Respondent

JUDGE:

BARKER, GRIFFITHS AND WHITE J

DATE OF ORDER:

5 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appellants pay the first and fifth respondents’ costs of the appeal, as agreed or assessed. 

2.The cross-appellants pay the first to third cross-respondents’ costs of the cross-appeal, as agreed or assessed. 

3.The second, third, fourth and sixth respondents (who are the fourth to seventh cross-respondents) bear their own costs of the appeal and the cross-appeal. 

4.All parties bear their own costs in relation to the notices of contention. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 24 January 2019, the Court published its reasons for judgment in this matter (see Ellis v Central Land Council [2019] FCAFC 1). The parties were invited to make submissions on the issue of costs and any other consequential relief arising from those reasons for judgment.

2. The parties have availed themselves of that opportunity.  They agree that the Court should order the appellants to pay the costs of the first and fifth respondents in respect of the appeal and that the cross-appellants should pay the costs of the first to third cross-respondents on the cross-appeal.  They also agree that all parties should bear their own costs in relation to the notice of contention. 

3. The only issue in dispute is whether the second and sixth respondents should have their costs in the appeal and cross-appeal. 

4. The Court considers that the second respondent (the Northern Territory) and the sixth respondent (Indigenous Essential Services Pty Ltd) should bear their own costs in these matters.  They adopted the written submissions of the first and fifth respondents (the CLC parties) in respect of both the appeal and the cross-appeal.They added very little by way of submissions, which were effectively confined to the issue whether equity would grant relief in the event that the appeal was upheld.  We do not consider that the extent of this limited participation makes it just that the second and sixth respondents have a separate order for costs in their favour in respect of the appeal or cross-appeal.  It was open to them to file a submitting notice, save as to costs, but they elected not to do so.  As noted above, they added little to the case which was put by the CLC parties on the appeal or cross-appeal. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker, Griffiths and White J.

Associate:

Dated:       5 February 2019

SCHEDULE OF PARTIES

NTD 15 of 2018
Respondents
Fourth Respondent:	CENTRAL AUSTRALIAN ABORIGINAL CONGRESS ABORIGINAL CORPORATION
Fifth Respondent:	AMOONGUNA ABORIGINAL LAND TRUST
Sixth Respondent:	INDIGENOUS ESSENTIAL SERVICES PTY LTD
Cross-Appellants
Second Cross-Appellant:	AMOONGUNA ABORIGINAL LAND TRUST
Cross-Respondents
Second Cross-Respondent	ROSEANNE PHILOMENA ELLIS
Third Cross-Respondent	IMWERNKWERNHE COMMUNITY LIMITED
Fourth Cross-Respondent	NORTHERN TERRITORY OF AUSTRALIA
Fifth Cross-Respondent	MACDONNELL REGIONAL COUNCIL
Sixth Cross-Respondent	CENTRAL AUSTRALIAN ABORIGINAL CONGRESS ABORIGINAL CORPORATION
Seventh Cross-Respondent	INDIGENOUS ESSENTIAL SERVICES PTY LTD