Gibson v Rivers-McCombs (No 2)
[2014] FCA 540
•26 May 2014
FEDERAL COURT OF AUSTRALIA
Gibson v Rivers‑McCombs (No 2) [2014] FCA 540
Citation: Gibson v Rivers‑McCombs (No 2) [2014] FCA 540 Parties: RUSSELL KURT GIBSON, HOPEVALE ABORIGINAL SHIRE COUNCIL and DHUBBI WARRA ABORIGINAL CORPORATION v STEPHEN RIVERS-MCCOMBS (AS DELEGATE OF THE NATIVE TITLE REGISTRAR), HOPEVALE CONGRESS ABORIGINAL CORPORATION, FRANCIS DEEMAL, VICTOR GIBSON and BRIAN COBUS File number: QUD 602 of 2011 Judge: DOWSETT J Date of judgment: 26 May 2014 Catchwords: PRACTICE AND PROCEDURE – costs – determination of – where judicial review proceedings arose out of decision to register an Indigenous Land Use Agreement – where Native Title Act 1993 (Cth) s 85A modifies expectation that costs follow the event – where applicant lacked standing – where alleged grounds of review lacked any merit – whether applicants’ conduct unreasonable. Legislation: Native Title Act 1993 (Cth) s 85A Date of hearing: Heard on the Papers Date of last submissions: 3 April 2014 Place: Brisbane (Heard in Cairns) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Solicitor for the Applicants: Bottoms English Lawyers Solicitor for the First Respondent: Holding Redlich Solicitor for the Second Respondent: Cape York Land Council Aboriginal Corporation
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 602 of 2011
BETWEEN: RUSSELL KURT GIBSON
First ApplicantHOPEVALE ABORIGINAL SHIRE COUNCIL
Second ApplicantDHUBBI WARRA ABORIGINAL CORPORATION
Third ApplicantAND: STEPHEN RIVERS-MCCOMBS (AS DELEGATE OF THE NATIVE TITLE REGISTRAR)
First RespondentHOPEVALE CONGRESS ABORIGINAL CORPORATION
Second RespondentFRANCIS DEEMAL
Third RespondentVICTOR GIBSON
Fourth RespondentBRIAN COBUS
Fifth Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
26 MAY 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the applicants pay the second respondent’s costs of the proceedings, including reserved costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 602 of 2011
BETWEEN: RUSSELL KURT GIBSON
First ApplicantHOPEVALE ABORIGINAL SHIRE COUNCIL
Second ApplicantDHUBBI WARRA ABORIGINAL CORPORATION
Third ApplicantAND: STEPHEN RIVERS-MCCOMBS (AS DELEGATE OF THE NATIVE TITLE REGISTRAR)
First RespondentHOPEVALE CONGRESS ABORIGINAL CORPORATION
Second RespondentFRANCIS DEEMAL
Third RespondentVICTOR GIBSON
Fourth RespondentBRIAN COBUS
Fifth Respondent
JUDGE:
DOWSETT J
DATE:
26 MAY 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 28 February 2014 I delivered judgment in this matter, together with my reasons. I ordered that the application be dismissed but indicated that I would receive submissions as to costs. I have subsequently received submissions from the second respondent. The solicitors for the applicants have advised me that the applicants do not resist orders for costs against them.
The history of the matter is complicated, dating from a consent determination as to the existence of Native Title pursuant to orders made by Beaumont J on 8 December 1997 (the “determination”). These proceedings have arisen out of steps taken to give final effect to those orders. In my reasons, I shall try to avoid repetition of matters which are set out in my earlier reasons.
The applicants sought judicial review of a decision by the Registrar of the National Native Title Tribunal (the “Registrar”) to register an agreement (the “agreement”) as an Indigenous Land Use Agreement (an “ILUA”) pursuant to the Native Title Act 1993 (Cth) (the “Act”). The agreement was primarily concerned with carrying into effect the grant of leases contemplated by the determination. In the end the applicants challenged such registration on two bases, namely that the agreement was not an ILUA as that term is defined in the Act, and that procedural requirements had not been observed in the decision‑making process, in that the Dharrpa clan had not been properly consulted, and had not made the decision approving the agreement in the manner contemplated in the Act.
The first applicant is a traditional owner and a blockholder in the sense in which I have used that term in my earlier reasons. However he is not a member of the Dharrpa clan. The second applicant is the local authority, responsible for all, or a substantial part of the area which is the subject of the determination. The agreement required that the second applicant be offered leases over land subject to the determination, which land was being used in, or in relation to its performance of its functions as a local authority. The third applicant is a prescribed body corporate, representing one of the numerous clan groups comprising the traditional owners. There was a challenge to the standing of each of the three applicants in bringing the application. I held that the first and third applicants had standing, but that the second applicant did not. I shall say a little more about standing at a later stage.
The two grounds upon which the applicants relied were generally lacking in merit. The first ground purported to address the proper construction of the provisions of the Act dealing with the registration of ILUAs. In fact it was an attempt to place an impermissible gloss upon the relatively clear language of the Act. The second point concerned only the procedure by which the Dharrpa clan consulted internally concerning the proposed agreement, and the process by which its consent was given. This issue did little more than reflect the views of a disaffected minority of clan members. Further, the argument seemed to depend upon misunderstandings and/or misrepresentations as to the process which was adopted by way of consultation and decision‑making. The evidence clearly demonstrated that members of the Dharrpa clan generally accepted the proposed agreement and were willing to consent to it. The third applicant actually consented to registration of the ILUA and was obliged to take reasonable steps to bring about that result. At the time of registration it made submissions supporting registration but subsequently decided to apply for review of the decision to register.
I decided that the first applicant had standing to bring the application only because he was a traditional owner, and not because he was a blockholder who was to be offered a lease pursuant to the agreement. I held that the third applicant had such standing because it represented some of the traditional owners. I accepted that both the first and third applicants had standing only to the extent that they were interested in ensuring that any decision affecting Native Title was properly made, the decision to enter into the agreement being such a decision.
It may be accepted for present purposes that the starting point for the award of costs in these proceedings is s 85A of the Act which provides:
(1)Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
(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 proceedings, the Court may order the first-mentioned party to pay some or all of those costs.
Given my finding that the second applicant had no standing to bring the application, it follows that it has, by an unreasonable act or omission, namely the commencement and prosecution of the proceedings, caused the second respondent to incur costs in connection with it. I have previously indicated that both grounds lacked merit. In those circumstances it is difficult to understand why the second applicant, as a statutory body, responsible for local government, should have become involved in the matter. It may be relevant to note that it had, over a period of some time, sought to prevent the transfer of the land, which is the subject of the Native Title determination, from it to the second respondent. The State had proposed such transfer and eventually effected it.
The first applicant, as a blockholder, had no greater interest than did the second applicant. If he considered that his rights as a blockholder were not sufficiently recognized by the lease which was to be offered to him pursuant to the ILUA, then it was for him to negotiate some other outcome. However, as a traditional owner he had an interest in seeing that any agreement, which was to be registered as an ILUA, was properly made. The weakness of the case (to which I have already referred) causes one to wonder why he should have entertained any bona fide concern as to such propriety. In the absence of any reasonable explanation as to why he joined in instituting and prosecuting the proceedings, I conclude that such conduct was unreasonable and caused the second respondent to incur costs in connection with the proceedings.
As to the third applicant, I have already pointed out that it originally agreed to the agreement and its registration as an ILUA. As a party to that agreement it was obliged to take such steps as were necessary in order to bring about its registration. Again, having regard to the weakness of the grounds upon which this application was based, one might reasonably have expected some explanation as to why the third applicant felt the need to participate in these proceedings. No such explanation has been forthcoming. In those circumstances I infer that it, too, acted unreasonably in commencing and prosecuting the proceedings and has, as a result, caused the second respondent to incur costs in connection with the proceedings.
These findings do not necessarily lead to the conclusion that the applicants should be ordered to pay the second respondent’s costs of the proceedings. However it is difficult to see any proper purpose in such proceedings. It is also difficult to avoid the conclusion that they were motivated by considerations other than genuine belief that appropriate procedures had not been followed, or that there had been a failure to comply with relevant provisions of the Act. In those circumstances I consider that the applicants should pay the second respondent’s costs of the proceedings, including reserved costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 26 May 2014
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