Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors Ward, Ben & Ors v The State of Western Australia
[1996] FCA 430
•31 MAY 1996
C A T C H W O R D S
PRACTICE AND PROCEDURE - costs - appeal from National Native Title Tribunal - appeal allowed - appellant relied on some seven grounds - appellant successful on only one of those grounds - whether costs should follow the event - whether special order should be made reflecting failure on the other grounds of appeal.
Native Title Act 1993 (Cth)
Hughes v. Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
Dodds Family Investments Pty Ltd v. Lane Industries Pty Ltd (1993) 26 IPR 261
BEN WARD & ORS v. THE STATE OF WESTERN AUSTRALIA and
AUSTRALIAN UNITED GOLD NL
No. WAG 6006 of 1995
CLARRIE SMITH v. THE STATE OF WESTERN AUSTRALIA and CRA
EXPLORATION PTY LTD, BHP EXPLORATION PTY LTD,
ASIAN MINING NL and SORNA PTY LTD
No. WG 6007 of 1995
BEN WARD & ORS v. THE STATE OF WESTERN AUSTRALIA and
CRA EXPLORATION PTY LTD
No. WAG 6002 of 1996
CARR J
PERTH
31 MAY 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 6006 of 1995
GENERAL DIVISION )
B E T W E E N : BEN WARD & ORS
Appellants
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
AUSTRALIAN UNITED GOLD NL
Second Respondent
No. WAG 6007 of 1995
B E T W E E N : CLARRIE SMITH
Appellant
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
CRA EXPLORATION PTY LTD
Second Respondent
and
BHP EXPLORATION PTY LTD
Third Respondent
and
ASIAN MINING NL and SORNA
PTY LTD
Fourth RespondentsNo. WAG 6002 of 1996
B E T W E E N: BEN WARD & ORS
Appellants
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
CRA EXPLORATION PTY LTD
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 31 MAY 1996
MINUTE OF ORDERS
APPLICATION NO. WAG 6006 OF 1995
THE COURT ORDERS THAT:
The appeal be allowed in respect of ground (i) of the grounds of appeal.
The appeal is otherwise dismissed.
The matter the subject of ground of appeal (i) be remitted to the National Native Title Tribunal for determination in accordance with the reasons for decision of this Court.
The National Native Title Tribunal determine whether further evidence is to be heard.
There be no order as to costs.
APPLICATION NO. WAG 6007 OF 1995
THE COURT ORDERS THAT:
The appeal be allowed in respect of ground (i) of the grounds of appeal.
The appeal is otherwise dismissed.
The matter the subject of ground of appeal (i) be remitted to the National Native Title Tribunal for determination in accordance with the reasons for decision of this Court.
The National Native Title Tribunal determine whether further evidence is to be heard.
There be no order as to costs.
APPLICATION NO. WAG 6002 OF 1996
THE COURT ORDERS THAT:
The appeal be allowed in respect of ground (e) of the grounds of appeal.
The appeal is otherwise dismissed.
The matter the subject of ground of appeal (e) be remitted to the National Native Title Tribunal for determination in accordance with the reasons for decision of this Court.
The National Native Title Tribunal determine whether further evidence is to be heard.
There be no order as to 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 ) No. WAG 6006 of 1995
GENERAL DIVISION )
B E T W E E N : BEN WARD & ORS
Appellants
and
THE STATE OF WESTERN AUSTRALIA
First Respondent
and
AUSTRALIAN UNITED GOLD NL
Second Respondent
No. WAG 6007 of 1995
B E T W E E N : CLARRIE SMITH
Appellant
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
CRA EXPLORATION PTY LTD
Second Respondent
and
BHP EXPLORATION PTY LTD
Third Respondent
and
ASIAN MINING NL and SORNA PTY
LTD
Fourth Respondents
No. WAG 6002 of 1996
B E T W E E N: BEN WARD & ORS
Appellants
and
THE STATE OF WESTERN
AUSTRALIA
First Respondent
and
CRA EXPLORATION PTY LTD
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 31 MAY 1996
SUPPLEMENTARY JUDGMENT
In this matter I published reasons for judgment on 9 May 1996. I directed the parties to bring in an agreed minute of orders to reflect the reasons then published, with a provision for submissions to be filed if the parties were unable to agree upon such a minute.
The parties have reached agreement on the terms of the orders save for the matter of costs. The appellants and the State of Western Australia have filed written submissions on that matter. The other respondents who took part in the appeals have indicated that they do not wish to make any submissions in relation to costs.
The State contends that it was "overwhelmingly successful" in the appeals. It submits that ordinarily it would be entitled to its costs or a substantial proportion of its costs. However, it claims 75 per cent of its costs. The State says that this "errs on the side of generosity" to the appellants and that its motivation in making this concession is to avoid descending to a minute and sterile argument as to who won on the respective issues. In anticipation of a claim (which the appellants in fact make) that they should not be ordered to pay costs on the basis that the appeals involved issues of public interest, the State says that while the case may have involved important issues of law, that was not sufficient to bring the matter within the public interest costs exclusion. Not all matters of interpretation of the Native Title Act, so it was put, involve the public interest.
The appellants submit that their costs should be paid by the State. The appellants rely on the general proposition that the successful litigant receives his costs, in the absence of special circumstances justifying some other order. The appellants say that they were successful because this Court decided that the Tribunal had made an error of law. The appellants submit that this is one of those cases where the ends of justice would not be served by depriving them of a proportion of their costs.
In the alternative, the appellants submit that there should be no order as to costs on the basis that the appeal was brought by a public interest group presenting to the Court arguments of substance upon portions of an Act which had not previously been considered by this Court. In their written submissions, the appellants expand upon the various aspects of public interest upon which they rely. I do not propose to repeat those submissions in these reasons.
In Hughes v. Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at p.48,136 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 he bear the expense of litigating that portion upon which he 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 Dodds Family Investments Pty Ltd v. Lane Industries Pty Ltd (1993) 26 IPR 261 (at pp.271-272) the Full Court of this Court observed:
"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 (No. 3) (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 the exercise of my discretion I have taken the starting point as being that the appellants were successful in that the appeal was allowed, albeit in respect of only one ground, and that a portion of each matter will be remitted to the Tribunal for determination.
I have considered the respective submissions of the appellants and the State. In particular I have weighed, on the one hand, the fact that fairly recent legislation was involved, against, on the other hand, the demands of the community for greater economy and efficiency in the conduct of litigation. In my assessment, at least half of the trial was taken up in determining issues upon which the appellants failed. 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.
In my view, it would be reasonable to reflect the appellants' success in having the matter remitted to the Tribunal and at the same time recognise that about half the trial was taken up in determining issues upon which the appellants failed, by ordering that there be no order as to costs.
I certify that this and the preceding four (4)
pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 31 May 1996
Counsel for the Appellants: Mr M T Ritter
Solicitors for the Appellants: Aboriginal Legal Service of Western Australia
(Inc)
Counsel for the First Respondent
in each matter: Mr G R Donaldson
Solicitors for the First Respondent: Crown Solicitor for the State of Western
Australia
Counsel for the Second and Third
Respondent in Appeal WAG 6007 of
1995 and for the Second Respondent
in Appeal No. WAG 6002 of 1996: Mr C P Stevenson
Solicitors for those Respondents: Mallesons Stephen Jaques
Dates of Hearing: 1, 2 April 1996
Date of Judgment: 31 May 1996
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