Gagudja Association v Northern Land Council

[1995] FCA 634

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION  No VG 417 of 1994

GAGUDJU ASSOCIATION

Applicant

-and-

NORTHERN LAND COUNCIL

Respondent

Coram:    Olney J

Place:    Melbourne

Date:     18 August 1995

REASONS FOR JUDGMENT - COSTS
The circumstances giving rise to this proceeding and the course of the litigation are dealt with in detail in my reasons for judgment published on 13 April 1995 and in supplementary reasons published on 10 May 1995.   I do not propose to rehearse the contents of either of those decisions in these reasons.

The applicant was entirely unsuccessful in obtaining any relief in the proceeding and the respondent seeks an order for its costs.   The question of costs was reserved on 10 May 1995 when the parties were given leave to make written submissions. Both parties have exercised the leave granted and this decision is in response to the matters raised therein.

The applicant resists the respondent's application and submits that the general rule that costs follow the event should be displaced.   I propose to refer briefly to the general thrust of the major arguments that have been advanced.

It is said by the applicant that the respondent failed on not less than 5 issues raised by it in the proceeding and was successful on only 2 of the issues that were argued.  As I understand it, the applicant's submission is that the separate issues should be isolated and made the subject of separate orders for costs.   In response the respondent says that the applicant's submission is misconceived in that it confuses contentions made in the course of argument with the orders sought in the proceeding.   It is said that the fact that some of its contentions were not accepted is not to the point but rather that what is relevant is that the entire proceeding failed at an interlocutory stage because as a matter of law it was unsustainable.

Whilst there are occasions when a successful party may not recover costs in relation to a particular issue that has been litigated, or may even be required to pay the opposite party its costs of such an issue, that case is not this case.   It cannot reasonably be said that the course of the proceedings was unduly extended or rendered more complex in its preparation by reason of the unsuccessful arguments advanced on the respondent's behalf nor is it possible to identify any significant additional expense to which the applicant was put in making its response to those issues.   The fact is that the respondent was in the result entirely successful and the applicant was entirely unsuccessful.   There is no basis for making an award of costs in relation to separate aspects of the argument.   Nor is there any reason why the costs reserved by orders made on 1 December 1994 and 20 February 1995 should not also be dealt with as part of the overall costs rather than by discrete orders.

The applicant points out that on 15 May 1995 the respondent indicated that it was unable to proceed further with the Ranger litigation and complains that had it been made aware of this fact at an earlier time it is likely that the present litigation would not have been commenced or at least would not have proceeded subsequent to the respondent's position being made known.   It appears that the applicant claims that the respondent brought about the litigation and therefore should not be entitled to recover its costs.   This proposition only has to be stated to demonstrate its illogicality.   The Ranger litigation was on foot when this proceeding was instituted by the applicant and the applicant chose to seek relief in relation to it which was unsustainable.

Then it is said that the respondent could have settled the Ranger litigation at any time subsequent to 24 August 1994 following the conclusion of the mediation at which agreement in principle was reached and that in failing or refusing to do so, the respondent placed itself in the same position as if it had unreasonably refused an offer of settlement.   With respect, I have the utmost difficulty in understanding how such an assertion (assuming it to be correct) can affect the outcome of the costs application in this proceeding.

Finally, it is put by the applicant that the matters in issue were of considerable public interest and that the decisions given on 13 April and 10 May 1995 will be "of continued assistance to the legal education and certainty under which (various incorporated Aboriginal bodies and land councils) govern themselves in the future".   Whilst a judge may be seduced by flattery into believing that his judgments have made a positive contribution to the general welfare of mankind, the fact is that the decisions in this case relate to unique factual circumstances and involve the application of the most basic principles of statutory interpretation to legislation found to contain uncomplicated language, the meaning of which was clear, in a context where the ordinary meaning of the words used was intended.

The respondent filed a cross-claim seeking injunctive relief to prevent the applicant, its servants or agents, including its solicitors from communicating or negotiating with the Ranger litigation respondents or their solicitors concerning the Ranger litigation on the possible settlement thereof.   Although it is said that the applicant sought further and better particulars of the cross-claim, none were supplied and in view of the subsequent decision of the respondent to not proceed further in the Ranger litigation the cross-claim is now clearly of no significance.   It is anticipated that the respondent will formally discontinue the cross-claim.

In my opinion the applicant has not raised any fact or circumstance which warrants a departure from the usual practice in this Court of ordering costs in favour of a party who has been entirely successful in resisting an unmeritorious claim.   However the respondent should not have its costs of the cross-claim and accordingly the order will be that the applicant pay the respondent's costs of and incidental to the application (including any reserved costs).   Reference is made to the application rather than the proceeding as it is not intended to cover costs of the cross-claim.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated: