O'Mara v Minister for Lands - [2008] FCA 51

FEDERAL COURT OF AUSTRALIA
O'Mara v Minister For Lands [2008] FCA 51
NATIVE TITLE – costs – application for injunction by persons not authorised applicants – whether s 85A of the Native Title Act 1993 (Cth) applies
Federal Court of Australia Act 1976 (Cth) ss 4, 29, 30, 43
Native Title Act 1993 (Cth) 31, 61, 62, 66B, 69, 80, 81, 84, 85A, 213, 253
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Fejo v Northern Territory (1998) 195 CLR 96
Holborow v Western Australia (2002) FCA 1428
Bolton on behalf of the Southern Noongar Families v State of Western Australian (2004) FCA 760
Ward and Others v Western Australia 1999 (93) FCR 305
Western Australia v Ward 2000 (99) FCR 306
Lardil Peoples and Others v State of Queensland and Others (2001) 108 FCR 453
Brownley v Western Australia No 2 (1999) 167 ALR 170
PETER O'MARA AND LYNETTE SYME v MINISTER FOR LANDS, MOORLABEN COAL MINES PTY LIMITED, MINISTER FOR MINERAL RESOURCES AND NATIONAL NATIVE TITLE TRIBUNAL
NSD 429 OF 2007
REEVES J
6 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 429 OF 2007

BETWEEN:

PETER O'MARA
First Applicant

LYNETTE SYME
Second Applicant

AND:

MINISTER FOR LANDS
First Respondent

MOORLABEN COAL MINES PTY LIMITED
Second Respondent

MINISTER FOR MINERAL RESOURCES
Third Respondent

NATIONAL NATIVE TITLE TRIBUNAL
Fourth Respondent

JUDGE:

REEVES J

DATE OF ORDER:

30 JANUARY AND 1 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
ON 30 JANUARY 2008
Notice of Motion filed 12 December 2007
1.The Notice of Motion filed by William Allen, Leonie Simpson and Elaine Bugg on 12 December 2007 (and subsequent amendments) be dismissed.

Notice of Motion filed 14 December 2007
2.The Notice of Motion filed by the second respondent on 14 December 2007 be dismissed.

Notice of Motion filed 24 January 2008
3.The Notice of Motion filed by William Allen, Leonie Simpson and Elaine Bugg on 24 January 2008 be dismissed.

Directions
4.The third respondent be released from the Undertaking given to the Court on 12 December 2007.
5.The second respondent be released from the Undertaking given to the Court on 24 December 2007.
6.The applicant file and serve any Affidavits and Submissions upon which it wishes to rely on the question of costs by 2pm on 31 January 2008.
7.The second respondent file and serve any Affidavits and Submissions in response on the question of costs by 4pm on 31 January 2008.
8.The hearing be adjourned to 9am on 1 February 2008.

ON 1 FEBRUARY 2008
9.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.

10.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.

11.William Allen, Leonie Simpson and Elaine Bugg pay the second and third respondents’ costs of the Notice of Motion filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 51
Decision Date: 6 February 2008

CaseChat Overview and Summary

The case of O'Mara v Minister for Lands involved a dispute regarding the applicability of section 85A of a particular Act, which deals with the allocation of costs in proceedings. The matter was heard in the Federal Court of Australia. The primary issue for the court was whether section 85A applied to the specific proceedings in question. The court had to interpret the relevant sections of the Act, particularly sections 61, 69(2), 81, 84, and 85A, to determine if the proceedings in question fell within the scope of section 85A.

The court examined the language and context of section 85A, noting that it removes the presumption that costs will usually follow the event unless otherwise ordered by the Federal Court. The court also considered relevant authorities, including Lee J’s decision in Brownley and the Full Court’s decision in Lardil. The court concluded that section 85A did not apply to the matter at hand, as the proceedings did not fall within the exclusive jurisdiction of the Court under sections 81 and 61 of the Act, but rather under the non-exclusive jurisdiction granted by sections 69(2) and 213(2).

Based on its reasoning, the court dismissed the various notices of motion filed by the parties and ordered that the costs incurred by the respondents be paid by the applicants. The court further directed that the time for making an application for leave to appeal would not commence until the court published its settled reasons for judgment.

The final orders included the dismissal of certain notices of motion, the release of undertakings given to the court, and specific directions regarding the filing and serving of affidavits and submissions on the question of costs. Additionally, the applicants were ordered to pay the costs of the respondents, with provisions for the immediate payment of these costs and the taxation of the bills. The time for making an application for leave to appeal was deferred until the court published its settled reasons for judgment.

Orders

Orders of the court

ON 30 JANUARY 2008

Notice of Motion filed 12 December 2007

1. The Notice of Motion filed by William Allen, Leonie Simpson and Elaine Bugg on 12 December 2007 (and subsequent amendments) be dismissed.

Notice of Motion filed 14 December 2007

2. The Notice of Motion filed by the second respondent on 14 December 2007 be dismissed.

Notice of Motion filed 24 January 2008

3. The Notice of Motion filed by William Allen, Leonie Simpson and Elaine Bugg on 24 January 2008 be dismissed.

Directions

4. The third respondent be released from the Undertaking given to the Court on 12 December 2007.

5. The second respondent be released from the Undertaking given to the Court on 24 December 2007.

6. The applicant file and serve any Affidavits and Submissions upon which it wishes to rely on the question of costs by 2pm on 31 January 2008.

7. The second respondent file and serve any Affidavits and Submissions in response on the question of costs by 4pm on 31 January 2008.

8. The hearing be adjourned to 9am on 1 February 2008.

ON 1 FEBRUARY 2008

9. 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.

10. 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.

11. 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.

12. Pursuant to Order 62 rule 3(2) and rule 3(3) of the Federal Court Rules, the costs of the second and third respondents referred to in Orders 9, 10 and 11 shall be payable forthwith and the second respondent shall be entitled to have its, and the third respondent shall be entitled to have his, bills taxed forthwith.

13. The time for making application 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.

14. Orders 9 to 12 shall take effect upon expiry of the time in Order 13.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

REEVES J

I just interpolate that I presume when Dowsett J is there referring to “that part”, he is referring to part 3. His Honour continued:“That would not include the applications referred to in s 69(2). All other applications referred to in Pt 3 appear to be expressly identified, while those to which s 69(2) refers are not. This suggests that ss 69(2) and 213(2) deal with the same matters.”Decision Having heard all the submissions and considered the authorities that I have been referred to, particularly Lee J’s decision in Brownley and the Full Court’s decision in Lardil, I have concluded that s 85A of the Act does not apply to this matter. My reasons in summary form are as follows. The obvious starting point is the words of s 85A itself. It provides in s 85A(1) that:“Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.” I would observe in passing that this section does not prevent costs being ordered in native title proceedings but instead removes any ground of anticipation or expectation that, unless cause is shown for some other order to be made, costs will usually follow the event: see Lee J’s decision in Ward and Others v Western Australia 1999 (93) FCR 305. That matter went on appeal and the Full Court of the Federal Court reached a different result on the appeal and a different result on the costs order but it did not appear to disagree with the reasoning of Lee J on this aspect: see Western Australia v Ward 2000 (99) FCR 306 at 484 at paragraphs [668] to [679]. Returning to the provisions of s 85A, neither the word, ‘party’, nor the word ‘proceeding’ is defined in the definition section of the Act, viz: s 253. The expression, ‘native title party’ is defined in that section by reference to ss 29(2)(a), 29(2)(b) and s 30 but none of those sections appears to be of any assistance in resolving the current issue. However, in my view, s 84 of the Act, which deals with ‘parties’, is. S 84(1) of the Act provides that:“Coverage of this section This section applies to proceedings in relation to applications to which s 61 applies.” The proceedings to which s 61 applies are those within the exclusive jurisdiction of the Court under s 81 of the Act. So much is made clear by Lee J, in Brownley at paragraphs [13] to [23] but particularly at paragraphs [18] and [19]. Ss 84(2) to 84(9) contain various provisions in relation to the parties to the proceedings described in s 84(1) i.e. proceedings in relation to applications to which s 61 applies and therefore proceedings within the exclusive jurisdiction of the Court under s 81. The word ‘proceedings’ in that context is repeated throughout the section. Conversely, nowhere in s 84 is a person identified who has a connection with, or an interest in, some other type of proceeding such as an application relating to matters arising under the Act within ss 69(2) and 213(2). Each use of the word ‘proceedings’ in s 84 appears to relate to proceedings within the exclusive grant of power under ss 81 and 61 of the Act rather than the non-exclusive grant of power under ss 69(2) and 213(2) of the Act. This dichotomy of power is described by Dowsett J in Lardil particularly at paragraph [154] where he draws a distinction between the two grants of power and the proceedings relating to each grant.

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

Full text does not contain this section.

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

JUDGE:	REEVES J
DATE OF ORDER:	30 JANUARY AND 1 FEBRUARY 2008
WHERE MADE:	SYDNEY