of the Commonwealth of Australia

[2002] FCA 422

FEDERAL COURT OF AUSTRALIA

Central Queensland Land Council Aboriginal Corporation v Attorney-General

of the Commonwealth of Australia [2002] FCA 422

CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, STATE OF QUEENSLAND

N 6002 of 2001

WILCOX J
11 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6002 OF 2001

BETWEEN:

CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION
APPLICANT

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

STATE OF QUEENSLAND
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	11 APRIL 2002
PLACE:	SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT ON COSTS

WILCOX J:

1. When I delivered judgment in this matter on 8 February 2002, I reserved all questions of costs.  I said this:

   “I will reserve the matter of costs.  The parties have achieved mixed results.  The applicant has obtained relief in respect of four of the determinations, but on a more restricted basis than it contended.  It has failed in respect of the statutory invalidity argument and the remaining three determinations.  In this situation, it may be appropriate to make no order as to costs.  However, I have not reached any firm view about costs and I am ready to consider any submission to the contrary.  Any party who wishes to put such a submission should forward it to my associate within 14 days.  Any party wishing to respond to that submission should do so within 14 days thereafter.

2. I have since received submissions from the first respondent, the Commonwealth Attorney-General, and the applicant. 

3. The Commonwealth Attorney-General argues the “peculiar features of this matter” justify an order that the applicant pay nine-tenths of his costs, notwithstanding the applicant’s success in respect of the s 43 determinations.  The features relied on by counsel are the extent of preparation and hearing time devoted to issues in respect of which the applicant failed.  It is said that, if the pleading and the hearing of the application had been confined to the one point on which the applicant succeeded, “the proceedings could have been finalised in less than two hours’ hearing time, and without the need for elaborate affidavits and submissions”.  Counsel refer to cases emphasising courts’ discretion, not only to deprive a successful party of costs but also to order that party to pay an opponent’s costs in relation to issues upon which the otherwise successful party failed.

4. The applicant submits I should adhere to the tentative view I expressed on 8 February 2002.  Counsel point out that, in addition to the point on which the applicant succeeded in invalidating the s 43 determinations, the applicant successfully resisted a number of submissions on other matters put by the Commonwealth Attorney-General and the State of Queensland.  Counsel also suggest there are special circumstances in this case, of the litigation being public interest litigation not carried out for personal gain or benefit of any party and which raised important issues in the administration of the Native Title Act and the Mineral Resources Act.

5. I do not think it necessary to discuss each of the points raised in the written submissions.  Although the statement is true, I do not put much weight on the applicant’s claim that this was public interest litigation dealing with important and novel questions of law, all of which questions were seriously arguable.  For me, the significant factor is that, in a complex case, results were mixed.  Not only did the applicant succeed on its s 43 claims, although not on all issues relating to such claims; it was also successful on some arguments concerning the s 26A claims.  I doubt very much that the hearing could have been confined to only a couple of hours, as suggested by counsel for the Attorney-General.  In any event, that is not the appropriate approach to exercise of the Court’s discretion.

6. In relation to a matter such as this, the Court has to make a judgment about what seems to be fair, having regard to the overall content and conduct of the litigation and its outcome. 

7. Although they have been beneficial to me in reconsidering the issue of costs, the written submissions have not dissuaded me from the tentative view I expressed on 8 February 2002.  I do not intend to make a costs order.

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

Associate:

Dated:             11 April 2002

Counsel for the Applicant:	Mr J Basten QC and Dr J Griffiths SC
Solicitor for the Applicant:	Chalk & Fitzgerald
Counsel for the First Respondent:	Mr P Hanks QC and Ms L McCallum
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr R P L Lancaster
Solicitor for the Second Respondent:	Crown Law
Dates of Hearing:	2, 3 and 4 October 2001