The State of Western Australia v Minister for Lands of the State of Western Australia
[1995] FCA 526
•24 MAY 1995
C A T C H W O R D S
PRACTICE & PROCEDURE - costs - applicants successful on some issues - respondents successful on others - discretionary judgment - matter of impression and evaluation.
THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Nos WAG 26, 39 and 53 of 1994
MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Nos. WAG 25, 40 and 45 of 1994
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA v. THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA AND MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA
No. WAG 55 of 1994
CARR J
PERTH
24 MAY 1995
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) Nos. WAG 26, 39 and 53 of 1994
B E T W E E N: THE STATE OF WESTERN AUSTRALIA
First-named Applicant
MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA
Second-named Applicant
MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA
Third-named Applicant
and
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Nos. WAG 25, 40 and 45 of 1994
MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS
Applicants
and
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
No. WAG 55 of 1994
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Applicant
and
THE STATE OF WESTERN AUSTRALIA
First Respondent
MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA
Second Respondent
MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA
Third Respondent
JUDGE MAKING ORDER: CARR J.
WHERE MADE: PERTH
DATE OF ORDER: 24 MAY 1995
MINUTE OF ORDERS
A.APPLICATION NOS WAG 25, 26, 39, 40, 45, AND 53 OF 1994
THE COURT ORDERS THAT:
1.The respondent pay 75% of the applicants' costs.
B. APPLICATION NO. WAG 55 OF 1994
1.The applicant pay the respondent's costs.
NOTE:Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) Nos. WAG 26, 39 and 53 of 1994
B E T W E E N: THE STATE OF WESTERN AUSTRALIA
First-named Applicant
MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA
Second-named Applicant
MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA
Third-named Applicant
and
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Nos. WAG 25, 40 and 45 of 1994
MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS
Applicants
and
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
No. WAG 55 of 1994
MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Applicant
and
THE STATE OF WESTERN AUSTRALIA
First Respondent
MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA
Second Respondent
MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA
Third Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 24 MAY 1995
REASONS FOR JUDGMENT
In these matters judgment was given on 7 February 1995. These reasons relate to the costs of the various applications. I shall refer to the parties who were applicants in the first six applications and who (except for Mr & Mrs Douglas) were the respondents in the seventh application, collectively as "the applicants" and I shall refer to the Minister for Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia as "the respondent". In my earlier reasons for judgment I indicated my view that the respondent should pay the applicants' costs in respect of
each of the applications but deferred making an order in relation to costs for a period of ten days to enable any party to file written submissions on that question. Each of the parties exercised that right and filed written submissions, the last of which was filed on 24 February 1995. Through no fault of the parties, those submissions found their way to me only on 2 May 1995.
There were seven applications which, although not consolidated, were heard together. They arose out of a series of three decisions made by the respondent under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the respondent's decisions not to revoke the declarations which were the subject of the first and last of those three decisions.
The respondent concedes that he must bear the costs of the seventh application (No. WAG 55 of 1994).
I have considered the three sets of written submissions which have been filed by both sides. I shall not refer individually to every submission.
The respondent says that although the applicants succeeded in their arguments that each of the first and second declarations was vitiated by a failure of the respondent to comply with the rules of natural justice and although the third declaration was remitted for further consideration on the grounds that the requirements of natural justice applying to that declaration had not been met and that the respondent had not read or considered submissions attached to the Chaney
Report, the applicants did not succeed in a significant number of different arguments attacking the validity of those declarations.
In each of those matters the respondent points to some four grounds relied upon by all of the applicants in respect of each of the matters and a further three grounds separately relied upon by Mr and Mrs Douglas in respect of each of which the respondent was successful. The respondent argues that if the applicants' grounds for review had been confined to the grounds upon which they succeeded then the preparation of the case and consequently the length of the trial would have been significantly abbreviated. In particular, the argument of no evidence/Wednesbury unreasonableness, so the respondent submits, necessitated an exhaustive investigation into the merits of the respondent's decisions. The respondent suggests that an order should be made which reflects both that situation and the partial degree of success on each side, namely that the respondent bear only 50% of the applicants' costs of the six matters concerned.
The applicants contend that the general rule should apply, namely costs should follow the event. They cite Cretazzo v. Lombardi (1975) 13 SASR 4 at p.16 as authority for the proposition that it is generally undesirable to apportion costs or attempt to do so according only to the success or failure of one party or the other upon various issues of fact or law. They suggest that the common thread running through the cases in which a successful party has been deprived of a portion of its costs is an element of unreasonableness on the part of that party in pursuing particular issues.
The applicants then submit that they did not raise any matters unreasonably and they point to various aspects of the respondent's conduct which they say had the result of which the respondent now complains. I refer to the dispute over the provision of reasons by the respondent. Nevertheless, on that aspect, I have regard to the fact that the respondent provided reasons to Mr & Mrs Douglas (insufficient, in my view, as they were). There was also reference to the respondent's failure to discover certain diaries, which in my opinion added to some extent to the costs of the hearing.
The applicants submit that the respondent's arguments boil down to the proposition that the applicants had been unsuccessful in respect of some issues and that therefore they should be deprived of a portion of their costs. The applicants say that this proposition is directly contrary to the authorities, which the applicants say seem to require some unreasonableness on the part of the unsuccessful party or some injustice to the successful party in respect of particular issues, before those issues can be "separated out" for the purposes of an award of costs.
In Hughes v. Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at p.48136 Toohey J. conveniently set out three propositions as follows:
"1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order ...
2.Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that it bear the expense of litigating that portion upon which it has failed ...
3.The successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the
technical pleading sense but any disputed question of fact or of law ..."
In a fairly recent decision of the Full Court of this Court, Dodds Family Investments Pty Ltd v. Lane Industries Pty Ltd (1993) 26 IPR 261 the Court observed (at pp.271-272):
"The propositions enunciated in that case [Toohey J's decision in Hughes v. Western Australian Cricket Association (Inc)] are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case - [citing Cretazzo's case]. In Trade Practices Commission v. Nicholas Enterprises Pty Ltd (1979) 42 FLR 213, Fisher J. regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party. Generally speaking, and notwithstanding the considerations referred to by Toohey J. and the other authorities mentioned above, the demands of the community for greater economy and efficiency in the conduct of litigation may properly be reflected in a qualification of the presumption that a successful party is entitled to all its costs."
In my view, this was a case where a considerable part of the trial was taken up in determining issues upon which the applicants failed. As against this I have taken into account the factors relating to the respondent's conduct to which the applicants refer in their submissions.
The matter to be decided is one of a discretion to be exercised as a matter of impression and evaluation rather than by an attempt at a mathematically precise division of time: Newcrest Mining (W.A.) Ltd v. The Commonwealth of Australia (unreported, French J. 17 December 1993, No. 954 of 1993); Commissioner of Australian Federal Police v. Razzi [No. 2] (1991) 101 ALR 425 at p.430; Permanent Building Society v. Wheeler (No. 2) (1993) 10 WAR 569. As part of that exercise, I
have in fact listed on a sheet of paper the main grounds upon which the applicants relied and noted the successful party in respect of each of those grounds. In terms of grounds, the numerical preponderance was very much in the respondent's favour. However, as Wilcox J. observed in Lewis v. Cummings (unreported, 29 May 1992, No. 334/1992 - appeal dismissed: Cummings v. Lewis (1993) 113 ALR 285) it may be a mistake to dissect too much and one needs to make a broad judgment as to what is reasonable in the whole of the circumstances.
Notwithstanding the views which I expressed on the question of costs in my earlier judgment in these matters, I consider that it is appropriate and fair to reduce the applicants' costs. The reduction I make is 25%. The reduction is not made on any arithmetical assessment but on a broad basis in an endeavour to take into account all of the relevant factors.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Justice Carr.
Associate:
Date: 24 May 1995
Counsel for the State of Western
Australia, the Minister for Land
for the State of Western Australia
and the Minister for Aboriginal
Affairs for the State of Western
Australia: Ms C.A. Wheeler, Q.C.
Solicitors for the State of
Western Australia, the Minister
for Land for the State of Western
Australia and the Minister for The Crown Solicitor
Aboriginal Affairs for the for the State of
State of Western Australia: Western Australia
Counsel for Mr and Mrs Douglas: Mr C.P. Stevenson
Solicitors for Mr and Mrs Douglas: Mallesons Stephen Jaques
Counsel for the Commonwealth
Minister for Aboriginal and Torres Mr E. Willheim and
Strait Islander Affairs: with him Mr K.J.
Martin
Solicitors for the Commonwealth
Minister for Aboriginal and Torres Australian Government
Strait Islander Affairs: Solicitor
Counsel and solicitor for the Mr G.M. Irving
Intervenors: Kimberley Land Council
Date of Judgment: 24 May 1994
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