Ngunnawal Local Aboriginal Land Council v Dean Bell on behalf of Ngunnawal Elders Council

[1995] FCA 1181

l 7s

IN THE FEDERAL COURT OF AUSTRALIA ) JUDGMENT No. ........ .. J .,

1

AUSTRALIAN CAPITAL TERRITOU

DISTRICT REGISTRY	1	No. AG 6001 of 1994
)
GENERAL DIVISION	)

BETWEEN : NGUNNAWAL LOCAL ABORIGINAL LAND COUNCIL

Applicant

AND : DEAN BELL on behalf of NGUNNAWAL ELDERS COUNCIL &

First Respondent

THF: STATE OF NEW SOUTH

WALES

Second Respondent

THE COMMONWEALTH OF

AUSTRALIA

Third Respondent

THE COUNCIL OF THE SHIRE OF

YARROWLUMLA

Fourth Respondent

THE ELECTRICITY COMMISSION OF NEW SOUTH WALES tradinq as PACIFIC POWER SERVICES

Fifth Respondent

EAST AUSTRALIAN PIPELINE

LIMITED

Sixth Respondent

20 APRIL 1995

REASONS FOR JUDGMENT

LOCKHART J.

In this matter the applicant seeks the leave of the court to discontinue the proceeding. There is consent by some of the interested parties to that course, and particularly the first respondent has no objection to that course.

The first respondent seeks an order that the applicant should pay the first respondents costs of the proceedings to date. No other interested party seeks any orders as to costs. The Court has undoubted power to award costs under both the

F e d e r a l C o u r t of A u s t r a l i a A c t ( 1 9 7 6 ) and the Rules. It is a

question of whether the Court in the exercise of its discretion should make an order of the kind sought by the first respondent.

In the ordinary course of litigation where a party has been brought to Court against its will as a respondent, the Court would order the applicant to pay the respondents costs. The matter which is relied upon on behalf of the applicant here as justifying a departure from that course is the fact that the proceeding has been brought under the Native Title Legislation. It is said, by reference to the Preamble to the Act and to S. 82(1), that a costs order would be contrary to

the objects of the legislation, and that the proper order should be that there be no order as to the costs of the first respondent. In my view those arguments do not persuade the court to do other than order the applicant to pay the costs of the first respondent and that is the order which the Court proposes to make.

Accordingly, the Court grants leave to the applicant to

discontinue this proceeding and orders the applicant to pay

the costs of the first respondent.

I should add that it was submitted on behalf of the applicant that the costs order, if it is to be made at all, should not operate beyond 13 April because on that date the first respondents solicitors were informed of the fact that the applicant proposed to seek leave of the court to discontinue. Notwithstanding that submission, I think the fair order for costs is that it embrace the costs of the first respondent up to and including today. The first respondent was entitled to appear as a party and is entitled to seek Costs and indeed its costs application has been resisted. In my view the costs order should operate up to and including the actual discontinuance of the proceeding.

I certify that this and the

preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

associate

Dated:

Appearing for the Applicant	:	Mr G Corr
Appearing for the First and Second Respondents
Appearing for the Third
Respondent	Mr P Roberts
Appearing for the Fourth
Respondent	Mr Maddison
Appearing for the Sixth
Respondent	Mr Merlos
Date of Hearing	20 April 1995
Date of Judgment	20 April 1995