Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (No 2)
[2013] SASCFC 103
•14 October 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS (No 2)
[2013] SASCFC 103
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
14 October 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
ABORIGINALS - NATIVE TITLE - PROCEDURE
On 5 November 2012, the Court allowed this appeal, set aside the judgment and orders of the Environment, Resources and Development Court and remitted the matter to another Judge of that Court for determination in accordance with the Court’s reasons. The Court directed written submissions by the parties as to costs. Whether costs should follow the cause.
Held: No order for the costs of the appeal and of the judicial review proceeding (at [13]).
Supreme Court Civil Rules 2006 (SA) s 264(1) and s 286(3)(d); Native Title (South Australia) Act 1994 (SA) s 3, s 5(4) and s 16B, referred to.
STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS (No 2)
[2013] SASCFC 103Full Court: Kourakis CJ, Gray and Stanley JJ
THE COURT.
On 5 November 2012, the Court allowed this appeal.[1] The Court set aside the judgment and orders of a Judge of the Environment, Resources and Development Court and remitted the matter to another Judge of that Court for determination in accordance with the Court’s reasons. The Court directed written submissions by the parties as to costs.
[1] Straits Exploration (Australia) Pty Ltd & Anor v Kokatha Uwankara Native Title Claimants & Ors [2012] SASCFC 121.
The appellants, Straits Exploration (Australia) Pty Ltd and Kelaray Pty Ltd, initially proceeded by way of appeal from the decision of the Environment, Resources and Development Court Judge. The defendants in the proceedings before the Environment, Resources and Development Court and the respondents to the appeal are the Kokatha Uwankara Native Title Claimants. The Adnyamathanha people were interveners in the Court below and were also named as respondents. However, they elected not to appear at the hearing of the appeal. The Attorney-General for the State of South Australia intervened on the hearing of the appeal.
Following the lodging of the appeal, a question arose as to whether the matter should proceed as an appeal or by way of judicial review. As a consequence, Straits and Kelaray issued judicial review proceedings. By agreement between the parties, both proceedings were heard at the same time and it was further agreed that the materials and submissions the subject of the proceedings could be used by this Court in its consideration of either set of proceedings. Broadly comparable issues arose for consideration under both proceedings.
All parties accepted that the Judge under appeal had purported to perform a judicial function in his determination of the application. It was agreed that the Judge, under the relevant legislative provisions, was not performing a judicial function; rather, he should have engaged in the exercise of purely administrative power.
Straits and Kelaray submitted that they substantially succeeded in the appeal and that costs should follow the event. As a consequence, orders in their favour were sought, both of the appeal and of the judicial review proceeding.
The Kokatha claimants sought an order that each party bear its own costs of the appeal and of the judicial review proceedings or, in the alternative, that the costs of the appeal be borne by Straits and Kelaray and the costs of the judicial review proceeding be apportioned between the Kokatha claimants and the Attorney-General.
Counsel for Adnyamathanha submitted that their client is not liable for costs and that they intended to take no part in the submissions regarding costs.
Upon joinder as an intervener to the proceedings, the Attorney-General submitted that he would not seek his costs and that he ought therefore not to be subject to any orders for costs. The Attorney-General requested that the matter be called on for oral submissions if the Court is minded to make any order for costs that may affect his interests.
In the Supreme Court’s ordinary jurisdiction, the Court’s discretion to award costs is unfettered.[2] It is a discretion which must be exercised judicially.
[2] Rule 286(3) of the Supreme Court Civil Rules 2006 (SA) relevantly provides:
Subject to any limitation on its powers arising apart from these rules, the Court may—
…
(d) make orders for the costs of the appeal.
Rule 264(1) of the Supreme Court Civil Rules 2006 (SA) provides:
The Court may, in the exercise of its discretion as to costs, award costs on any basis the Court considers appropriate.
A primary reason for allowing the appeal and remitting the matter for rehearing was the Judge’s misapprehension as to the nature of his jurisdiction. The consequences of this misapprehension are set out in the Court’s reasons for allowing the appeal. Both parties conducted the hearing before the Judge on the basis that he was performing a judicial function. The misapprehensions in this respect arose in the course of the hearing of the appeal. As a consequence, both parties bear responsibility for the events that followed from that misapprehension.
Where proceedings involve a “native title question”, other considerations arise.[3] Section 16B of the Native Title (South Australia) Act 1994 (SA) provides:
(1)Unless the Court otherwise orders, each party to proceedings is to bear its own costs of the proceedings to the extent the proceedings involve a native title question.
(2)For example, if a party has, by an unreasonable act or omission, caused another party to incur costs in connection with the proceedings, the Court may (in the exercise of its power to make an exception to the general principle that each party is to bear its own costs) order the party at fault to pay some or all the costs incurred by the other.
A question of native title was central to the determination of the proceeding in the Environment, Resources and Development Court and on the hearing of the appeal to this Court. Although the proceeding was not under the Native Title (South Australia) Act, native title considerations were at the forefront of the hearing. The principle set out in section 16B of the Native Title (South Australia) Act is relevant to the approach to be taken to costs.
[3] See Native Title (South Australia) Act 1994 (SA) sections 3, 5(4) and 16B.
It is also significant that, notwithstanding the findings of the Environment, Resources and Development Court Judge, and in particular the heavy criticisms of Straits and Kelaray, the Judge made no order for costs.
Conclusion
For these reasons there is to be no order for the costs of the appeal and of the judicial review proceeding.
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