O'Mara on behalf of the Wiradjuri People of the Bathurst/Lithgow/Mudgee Area v Minister for Lands

[2008] FCA 84

FEDERAL COURT OF AUSTRALIA

O'Mara on behalf of the Wiradjuri People of the Bathurst/Lithgow/Mudgee Area v Minister for Lands [2008] FCA 84

Federal Court Act 1976 s 85A

Minister for Immigration and Ethnic Affairs ex parte Lai [1997] 186 CLR 622 at 624-625

PETER O'MARA & LYNETTE SYME ON BEHALF OF THE WIRADJURI PEOPLE OF THE BATHURST/LITHGOW/MUDGEE AREA v MINISTER FOR LANDS, MOORLABEN COAL MINES PTY LTD, MINISTER FOR MINERAL RESOURCES AND NATIONAL NATIVE TITLE TRIBUNAL

NSD 429 OF 2007

REEVES J
1 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 429 OF 2007

PETER O'MARA & LYNETTE SYME ON BEHALF OF THE WIRADJURI PEOPLE OF THE BATHURST/LITHGOW/MUDGEE AREA
APPLICANT

BETWEEN:

PETER O'MARA & LYNETTE SYME ON BEHALF OF THE WIRADJURI PEOPLE OF THE BATHURST/LITHGOW/MUDGEE AREA

AND:

MINISTER FOR LANDS
First Respondent

MOORLABEN COAL MINES PTY LTD
Second Respondent

MINISTER FOR MINERAL RESOURCES
Third Respondent

NATIONAL NATIVE TITLE TRIBUNAL
Fourth Respondent

JUDGE:	REEVES J
DATE OF ORDER:	1 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)William Allen, Leonie Simpson and Elaine Bugg pay the second and third respondents’ costs of the notice of motion filed by them on 12 December 2007, as subsequently amended. 

(2)William Allen, Leonie Simpson and Elaine Bugg pay the second and third respondents’ costs of the notice of motion filed by the second respondent on 14 December 2007.

(3)William Allen, Leonie Simpson and Elaine Bugg pay the second and third respondents’ costs of the notice of motion filed by them on 24 January 2008.

(4)Pursuant to order 62 rule 3 subrule (ii) and subrule (iii) of the Federal Court Rules.  The costs of the second and third respondents referred to in orders (1), (2) and (3) shall be payable forthwith and the second and third respondent shall be entitled to have their bills taxed forthwith.

(5)The time for making applications for leave to appeal from the decision of the court of 30 January 2008 shall not run until the court publishes its settled reasons for judgment.

(6)Orders (1) to (4) inclusive shall take effect upon expiry of the time in order 5.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 429 OF 2007

BETWEEN:

PETER O'MARA & LYNETTE SYME ON BEHALF OF THE WIRADJURI PEOPLE OF THE BATHURST/LITHGOW/MUDGEE AREA

AND:

MINISTER FOR LANDS
First Respondent

MOORLABEN COAL MINES PTY LTD
Second Respondent

MINISTER FOR MINERAL RESOURCES
Third Respondent

NATIONAL NATIVE TITLE TRIBUNAL
Fourth Respondent

JUDGE:	REEVES J
DATE:	1 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Ordinarily, where there has been no hearing on the merits and neither party wishes to proceed, the court would order that each party bear their own costs.  However, in this matter, the reason why the second respondent and the other respondents do not wish to proceed is because the applicants no longer wish to proceed.  That, I believe, brings this matter within the exception mentioned by McHugh J in Minister for Immigration and Ethnic Affairs ex parte Lai [1997] 186 CLR 622 at 624-625.

2. That the applicants no longer wished to proceed with this matter was made clear on 25 January 2008 when the applicants’ solicitors wrote to the Deputy District Registrar of the New South Wales District Registry of the Court stating that they wished to, among other things, “Seek leave to discontinue their proceeding.”  Further on in the letter the applicants’ solicitors stated, “A form 29 has been drafted and will, should leave be granted, be filed that day.”  A form 29 is, of course, a notice of discontinuance under order 22 of the Federal Court Rules 1979.

3. If this matter had been a proceeding and had been discontinued under order 22, order 22 rule 3 would have applied to require the applicants to pay the respondents’ costs.  The fact that this matter was later held not to be a proceeding, I might add, within section 85A of the Federal Court Act 1976, which may have a different meaning from proceeding within the provisions of the Federal Court Act or rules, does not, I believe, detract from the conclusion that the applicants no longer wish to proceed with this matter.

4. I do not consider it is necessary to examine the reasonableness or unreasonableness of the conduct of the applicants in commencing the proceedings or in deciding they no longer wish to proceed with them.  I include within that, whether or not the proceedings were doomed from the outset, or any of the other aspects that were urged upon me by both the applicants and the counsel for the second respondent.  The plain fact is they made a decision, obviously in their own best interests, to - to use their own words - “discontinue their proceeding,” and I consider that those circumstances justify my exercising my discretion to order the applicants to pay the respondents’ costs.

5. I should add that I am not persuaded that I should examine the conduct of the parties during the proceedings to attempt to split costs based upon their conduct of a particular part of the proceedings, compliance with directions or other matters within the proceedings. As to the second respondent’s application to have the costs payable forthwith, these proceedings, that is the underlying primary proceedings, are proceedings under section 61 of the Native Title Act for the determination of native title and as Mr Waters points out, those proceedings are likely to be on foot for some time in the future.

6. The respondents to this matter and, indeed, the applicants are not primary parties – if I can use that expression – to the underlying proceedings, and in those circumstances, I believe I am justified in exercising a discretion to order that the costs be payable forthwith.

7. Ms Phillips has asked that I stay the execution of that order pending the appeal period under the Act and rules.  I will so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        15 February 2008

Counsel for the Applicants:	Ms S Phillips
Solicitor for the Applicants:	Ntcorp Ltd
Counsel for the First and Third Respondents:	Ms G Wright
Solicitor for the First and Third Respondents:	IV Knight, Crown Solicitor
Counsel for the Second Respondent:	Mr J A Waters
Solicitor for the Second Respondent:	Blake Dawson
Date of Hearing:	1 February 2008
Date of Judgment:	1 February 2008