Jones and Ors of the Dalungbara, Batchala and Ngulungbara People v State of Queensland and Cth

[2000] QSC 64

SUPREME COURT OF QUEENSLAND

CITATION:	Jones & Ors v State of Queensland & Cwlth of Australia [2000] QSC 064
PARTIES:	JOHN LEE JONES Elder and others of the DALUNGBARA, BATCHALA and NGULUNGBARA PEOPLE of KGARI (Great Sandy Region) as Trustees by Native Customary Law (Plaintiffs) and THE STATE OF QUEENSLAND (First Defendant) and THE COMMONWEALTH OF AUSTRALIA (Second Defendant)
FILE NO/S:	No 183 of 1994
DELIVERED ON:	24 March 2000
DELIVERED AT:	Brisbane
JUDGE:	Muir J
ORDER:	That the plaintiffs pay two-thirds of the costs of the second defendant of and incidental to this action (including reserved costs) to be assessed, save that the second defendant’s costs relating to the period prior to 1 November 1997 be limited to those which were the subject of the order of Ambrose J made on 18 February 1998.
CATCHWORDS:	COSTS – claim for common law native title struck out – whether “public interest” litigation – general principles
COUNSEL:	Mr J.L. Jones, in person, for the plaintiffs The Australian Government Solicitor for the second defendant
SOLICITORS:	The Australian Government Solicitor for the second defendant

1. MUIR J: On 24 December 1999 I handed down reasons for a costs order which I then

   proposed making. Mr Jones, who appeared on behalf of himself and the other

   plaintiffs, presented an oral argument that the costs order foreshadowed in the reasons

   should not be made having regard to a decision in Yarmirr v Northern Territory (1999)

FCA 1668 recently handed down by the Full Court of the Federal Court. He argued
that that decision was contrary to the decision of Mr Justice Ambrose made in this

matter on 31 October 1997, on an application by the first and second defendants to

strike out the statement of claim, in which it was decided that the Supreme Court did

not have jurisdiction to determine the plaintiffs’ common law native title claim to seas

and submerged lands seaward of the Queensland coastal waters because of “the

Mocambique rule”. His Honour held that British South Africa Co v Companhia de

Mocambique [1893] AC 602 was authority for the proposition that a superior court

may not determine disputed claims of title to foreign lands and that such a principle

applied to the plaintiffs’ claim to seas and submerged lands seaward of Queensland

coastal waters. On 18 February 1998 Ambrose J ordered that one-third of the

Commonwealth’s taxed costs of the application be costs in the cause and that the

Commonwealth pay two-thirds of Queensland’s taxed costs. The reason for depriving

the second defendant of two-thirds of its costs was that it failed in its contention that

the Supreme Court had no jurisdiction to decide a claim to rights over land and waters

beyond the low water mark on the States’ seaward boundaries.

1. In Yarmirr, at first instance, Olney J found against the second defendant’s contention

   that native title rights and interests did not exist beyond the seaward limits of the

   Northern Territory. The basis of the second defendants’ argument was that native title

   can have no existence where the common law does not apply and that common law did

   not recognise native title rights beyond the seaward limits of a State or Territory. The

   argument failed, it being held that the Native Title Act 1993 (Cth) provided a basis for

   recognising native title rights off shore.

2. The plaintiffs’ claim in this case was a common law claim which was not based and

   did not rely on the provisions of the Native Title Act. Furthermore in Yarmirr, no

   question arose as to the entitlement of any court to determine native title applications

   as the jurisdiction of the court at first instance was established by s 81 of the Native

   Title Act. For these reasons Yarmirr cannot be said to have arrived at a conclusion

   contrary to that expressed in the reasons of Ambrose J. Because there has been no

   appeal from Ambrose J’s order I see no reason to depart from the order foreshadowed

   in my reasons of 23 December.

3. At the conclusion of Mr Jones’ oral submissions, I indicated that I would receive

   further written submissions on the point raised. Those submissions were received in

   January. Mr Jones’ arguments extended beyond the point raised in oral submissions.

   He argued, additionally, that the State of Queensland was in the position of trustee in

   relation to persons of Aboriginal descent. Because of the alleged existence of a

   relationship of beneficiary and trustee it was urged that the first defendant was obliged

   to bear any costs which the second defendant might otherwise be entitled to recover

   from the plaintiffs. Furthermore it was asserted that the Commonwealth had “an

   overriding duty of trust towards all Aborigines across Australia and if any costs are

   incurred it should be equally shared between the State and the Commonwealth”.

4. The first defendant was not party to the argument in relation to costs – it elected not to

   claim costs against the plaintiffs. Consequently I could not make any order which

   would adversely affect its interests without affording it an opportunity to be heard. But

   in any event, no legal basis for the above contentions has been established.

5. I order that the plaintiffs pay two-thirds of the costs of the second defendant of and

   incidental to this action (including reserved costs) to be assessed, save that the second

   defendant’s costs relating to the period prior to 1 November 1997 be limited to those

   which were the subject of the order of Ambrose J made on 18 February 1998.