Ngurampaa Limited v Brewarrina Shire Council

[2014] NSWSC 1022

Supreme Court

New South Wales

Medium Neutral Citation:

Ngurampaa Limited v Brewarrina Shire Council & Anor [2014] NSWSC 1022

Decision date:

25 July 2014

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

I make the following orders:

1. The plaintiff is to file and serve an affidavit in compliance with the Uniform Civil Procedure Rules 2005 Part 50 Rule 14 on or before 22 August 2014;

2. The matter will be listed for further directions before the registrar on 29 August 2014;

3. The question of the costs of today's discontinued notice of motion will be reserved, to be determined by the judge who hears the appeal.

Catchwords:

CIVIL LAW - radical title - native title - removed case to High Court - removed case to Privy Council - costs order

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Ngurampaa Limited (Plaintiff)
Brewarrina Shire Council (First Defendant)
Katrina Hodgkinson; Minister for Primary Industries and Minister for Small Business (Second Defendant)

Representation:

Counsel:
Eckford (Leave to appear in person for the Plaintiff)
S Bell (First Defendant)
N Kelly (Second Defendant)
Solicitors:
Self represented (Plaintiff)
SR Law (First Defendant)
Crown Solicitors of NSW (Second Defendant)

File Number(s):

2014/58631

Publication restriction:

Nil

ex tempore Judgment

1. HAMILL J: The matter has come before me today on an application by the plaintiff for orders, which can be summarised as being orders removing the case to the High Court of Australia or alternatively to a body described as the Supreme Court of the United Kingdom sitting as the Privy Council.

1. After some observations made by me when the matter was first mentioned shortly after 10am, the parties have had some discussions - that is, the first defendant represented by Mr Bell, the second defendant being represented by Mr Kelly and the plaintiff being in a sense self-represented but in any event represented by Mr Eckford. The consequence of those discussions is that the matter will be subject to agreed orders in the nature of case management. I propose to make the orders agreed to by the parties.

1. Mr Bell on behalf of the Brewarrina Shire Council sought an order for costs, that is to say the costs of the notice of motion, and indicated that the result of the notice of motion having been filed was that he, those who instruct him and the Council, have been put to significant expense in preparing in relation to the complex and important issues surrounding native or radical title, matters which do inevitably involve legal concepts of a fundamental and important kind. There may be real force in Mr Bell's application for costs given that Mr Eckford has now discontinued his application as set out in the notice of motion. However Mr Bell with appropriate candour has indicated to me that at least some of the issues that give rise to the notice of motion, that is, those fundamental issues concerning native title, radical title and whose land it is, are issues that also will play a part in a proper determination of the appeal underlying this notice of motion.

1. In the circumstances and given my almost complete unawareness of precisely what those issues are, it is my view that the question of costs of this notice of motion should be reserved and considered by the judge who hears the case. I have come to that view because the judge who does hear the case will be able to make a reasoned assessment as to the extent to which the first defendant, and if relevant the second defendant, have been put to expense as a result of the notice of motion that they would not have been put to in preparing for the appeal itself.

1. I am not suggesting for a moment there is no additional expense - for one thing they have counsel and solicitors in court today. However I think it better that a judge who is fully aware of the merits of both sides of this debate make a decision as to the question of costs. Accordingly I do not propose to accede to make an order for costs today but the question of costs of today should be reserved and determined by the trial judge.

1. In accordance with those reasons and with the agreement reached by the parties I make the following orders:

(1) The plaintiff is to file and serve an affidavit in compliance with the Uniform Civil Procedure Rules 2005 Part 50 Rule 14 on or before 22 August 2014;

(2)   The matter will be listed for further directions before the registrar on 29 August 2014;

(3)   The question of the costs of today's discontinued notice of motion will be reserved, to be determined by the judge who hears the appeal.

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Decision last updated: 29 July 2014