Ward v Western Australia
[1999] FCA 580
•6 MAY 1999
FEDERAL COURT OF AUSTRALIA
Ward v State of Western Australia [1999] FCA 580
COSTS – application for costs of native title determination proceedings by successful native title party – discretion of Court to award costs – whether s 85A of the Native Title Act 1993 (Cth) limited the Court’s discretion – proper construction of s 85A – apportionment of costs.
Family Law Act 1975 (Cth) s 117
Federal Court of Australia Act 1976 (Cth) ss 5, 43, 43(1)
Native Title Act 1993 (Cth) s 64
Native Title Amendment Act 1998 (Cth) ss 85A, 85A(1), 85A(2)Workplace Relations Act 1996 (Cth) ss 170CS, 347
The Constitution s 71Quick R, Quick on Costs (North Ryde, NSW: LBC Information Services, 1996)
Ward v State of Western Australia (1998) 159 ALR 483 referred to
Harris v Caladine (1991) 172 CLR 84 cited
Wardley v Western Australia (1992) 175 CLR 514 cited
R v Forbes; ex parte Bevan (1972) 127 CLR 1 citedR v Ross-Jones; ex parte Green (1984) 156 CLR 185 cited
Myers v Elman [1940] AC 282 cited
Edwards v Edwards [1958] P 235 cited
Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 1 WLR 962 cited
Davy-Chiesman v Davy-Chiesman [1984] 2 WLR 291 cited
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited
R v Bennett (1902) 5 CCC 465 cited
Re Bombay Civil Fund Act, 1882 (1888) 39 Ch D 300 cited
Grys v Sewell and Jaffary (1972) 1 OR 864 cited
Stewart v Waterloo Mutual Insurance Co [1977] 3 CPC 236 cited
Singh v Singh (1992) 10 CPC (3d) 42 citedKnight v FP Special Assets (1992) 174 CLR 178 cited
R v Jones (1894) 2 QB 382 cited
Oshlack v Richmond River Council (1998) 72 ALJR 578 citedPenfold v Penfold (1980) 144 CLR 311 cited
Mallet v Mallet (1984) 156 CLR 605 citedIn the Marriage of Collins (1985) 75 FLR 84 cited
In Marriage of I [No 2] (1995) 125 FLR 332 cited
In Marriage of McAlpin (1993) 114 FLR 452 cited
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 cited
Thompson v Hodder (1989) 21 FCR 467 cited
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 cited
Yarmirr v The Northern Territory of Australia [1998] FCA 1185 referred to
Galvin v The Forests Commission of Victoria [1939] VLR 284 cited
Botany City Council v Minister for Transport [1999] FCA 65 cited
Northern Territory of Australia v Lane; State of Western Australia v Lane (1995) 138 ALR 544 referred to
The Northern Territory of Australia v Lane (O’Loughlin J, unreported, 14 June 1996 – Judgment No 465) referred toBEN WARD & ORS v STATE OF WESTERN AUSTRALIA & ORS
W 6001 OF 1995
LEE J
6 MAY 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 6001 OF 1995
BETWEEN:
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG & GAJERRONG PEOPLE
First ApplicantsCECIL NINGARMARA & ORS
Second ApplicantsDELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES
Third ApplicantAND:
STATE OF WESTERN AUSTRALIA & ORS
First RespondentsCHIEF MINISTER OF THE NORTHERN TERRITORY
Second RespondentCONSERVATION LAND CORPORATION
Third RespondentKIMBERLEY LAND COUNCIL & ANOR
Fifth RespondentsALLIGATOR AIRWAYS PTY LTD & ORS
Sixth RespondentsCARLTON HILL PTY LTD & ORS
Seventh RespondentsAMITY OIL NL & ORS
Eighth RespondentsCALYTRIX INVESTMENTS PTY LTD & ORS
Ninth RespondentsKIMBERLEY SPORTFISHING CLUB & ORS
Tenth RespondentsSHIRE OF WYNDHAM-EAST KIMBERLEY
Eleventh RespondentPACIFIC HYDRO GROUP TWO PTY LTD
Twelfth RespondentINNES HOLDINGS PTY LTD
Thirteenth RespondentMINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS
IntervenerJUDGE:
LEE J
DATE OF ORDER:
6 MAY 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The first and second respondents pay the costs of the first applicants as to 90 per cent thereof, three quarters to be paid by the first respondents and one quarter by the second respondent.
2. There be no other order for 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
W 6001 OF 1995
BETWEEN:
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG & GAJERRONG PEOPLE
First ApplicantsCECIL NINGARMARA & ORS
Second ApplicantsDELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES
Third ApplicantAND:
STATE OF WESTERN AUSTRALIA & ORS
First RespondentsCHIEF MINISTER OF THE NORTHERN TERRITORY
Second RespondentCONSERVATION LAND CORPORATION
Third RespondentKIMBERLEY LAND COUNCIL & ANOR
Fifth RespondentsALLIGATOR AIRWAYS PTY LTD & ORS
Sixth RespondentsCARLTON HILL PTY LTD & ORS
Seventh RespondentsAMITY OIL NL & ORS
Eighth RespondentsCALYTRIX INVESTMENTS PTY LTD & ORS
Ninth RespondentsKIMBERLEY SPORTFISHING CLUB & ORS
Tenth RespondentsSHIRE OF WYNDHAM-EAST KIMBERLEY
Eleventh RespondentPACIFIC HYDRO GROUP TWO PTY LTD
Twelfth RespondentINNES HOLDINGS PTY LTD
Thirteenth RespondentMINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS
Intervener
JUDGE:
LEE J
DATE:
6 MAY 1999
PLACE:
PERTH
REASONS FOR JUDGMENT
On 24 November 1998 a determination of native title was made in favour of the first applicants after trial of the relevant issues. The reasons for that determination are now reported as Ward v State of Western Australia (1998) 159 ALR 483. The parties were given liberty to apply in respect of the costs of the proceeding.
The first applicants have applied for an order that the first respondent (“the State”), the second respondent (“the Territory”), and the thirteenth respondent (“Innes”), pay the costs of the first applicants.
The application is opposed.
As set out in Ward, the hearing took place over 85 days between 17 February 1997 and 9 April 1998. On 23 October 1998 further submissions were made by counsel with respect to the effect on the Native Title Act 1993 (Cth) (“the Act”) of that part of the Native Title Amendment Act 1998 (Cth) that commenced on 30 September 1998.
One such amendment was the insertion of s 85A which reads as follows:
“85A Costs
(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
Unreasonable Conduct
(2) Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.”
Before s 85A was inserted the Act contained no provision relating to costs.
The first applicants submitted that the amendment had not removed the discretion of the Court to make such order for the payment of costs of litigation as the Court thinks fit and, that, in any event, the amendment should be read as intended to operate prospectively.
The State, the Territory and Innes submitted that the effect of s 85A was to limit the discretion of the Court to award costs to circumstances where unreasonable conduct by a party had caused another party to incur costs with respect to the conduct of the proceeding. Furthermore, the litigation concerned the determination of novel and difficult questions which involved an element of public interest and it was not usual litigation in which a costs order may be expected and be appropriate. Innes further submitted that the role of “private” parties who, to protect their interests, had to participate in litigation involving questions of “public” law conducted by principal parties should be distinguished from the role and liability for costs of the principals.
Section 43 of the Federal Court of Australia Act1976 (Cth) provides as follows:
“43(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.
…
43(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.”
Although expressed in the terms of a conferral of jurisdiction to “award costs”, s 43 confirms that the Court has power, exercisable in the Court’s discretion, to order where costs incurred in the litigation are to fall. Whether the exercise of such a power may rely on a source other than s 43 of the Federal Court of Australia Act is unnecessary to determine. It may be contended that the power to award costs in respect of litigation conducted in the Court may arise under an inherent power of a superior court of record (see: Harris v Caladine (1991) 172 CLR 84 per Mason CJ and Deane J at 95 - 96) or under a power incidental and necessary to the exercise of jurisdiction conferred on the Court (see: Wardley v Western Australia (1992) 175 CLR 514 per Toohey J at 561) or under a power reposed in the Court as a federal Court by s 71 of the Constitution as part of the judicial power of the Commonwealth.
If the source of the power were section 71 of the Constitution, an issue may arise as to whether the Parliament may purport to control it. (See: Harris v Caladine per Toohey J at 135 – 137.) In some circumstances the power to make an order sounding in costs may be essential for the due administration of justice and, therefore, an integral part of a judicial power. Such an order is not calculated to provide compensation to a party for expense incurred in the litigation, but to protect the integrity of the processes and function of the Court by imposing appropriate sanctions where the conduct of a person is inimical to those objects. Such a sanction may be an order directing a person, including a person not a party to the proceedings, to pay costs. (See: R v Forbes; ex parte Bevan (1972) 127 CLR 1 per Barwick CJ at 8; R v Ross-Jones; ex parte Green (1984) 156 CLR 185 per Gibbs CJ at 200; Myers vElman [1940] AC 282 at 289, 302, 319; Edwards v Edwards [1958] P 235; Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 1 WLR 962; Davy-Chiesman v Davy‑Chiesman [1984] 2 WLR 291 at 299 – 302.)
Such circumstances may arise where there has been use of the process of the Court for an ulterior purpose, for example, commencement of litigation, issue of a witness summons or drafting of a pleading to embarrass, harass or oppress a party to the litigation or other person. (See: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 228 - 234; R v Bennett (1902) 5 CCC 465; Re Bombay Civil Fund Act, 1882 (1888) 39 Ch D 300; Grys v Sewell and Jaffary (1972) 1 OR 864; Stewart v Waterloo Mutual Insurance Co [1977] 3 CPC 236; Singh v Singh (1992) 10 CPC (3d) 42.)
The power to make an order for the payment of costs in those circumstances may be said to be part of the judicial power vested in the Court by the Constitution, not limited to a statutory power to award costs conferred by s 43.
The power conferred by s 43 is a statutory provision born out of a rule in courts of common law that damages, and, therefore, costs were not recoverable in real actions. Costs orders in common law became a creation of statute and not a development of common law. (See: Quick R, Quick on Costs (North Ryde, NSW: LBC Information Services, 1996) par 230 – 240.) However in courts of equity orders for costs were always available in the discretion of the Court. (See: Knight v FP Special Assets (1992) 174 CLR 178 per Mason CJ and Deane J at 182 –183.) Section 5 of the Federal Court of Australia Act states that the Court is a superior court of record and a court of common law and equity. That provision is predicated upon the combination of common law and equity effected in other Australian superior courts and it is that combination to which the judicial power of the Commonwealth refers in s 71 of the Constitution. (See: Caboolture Park at 228). With the combined administration of equity and common law it may be thought that all superior courts thereafter had recourse to an inherent power to award costs. Certainly statutory provisions made the equitable rule the rule in all cases. (See: R v Jones (1894) 2 QB 382; Oshlack v Richmond River Council (1998) 72 ALJR 578 per Gaudron and Gummow JJ at 585.)
It is in this historical context that s 85A of the Act falls to be construed.
The first point to note is that in its terms s 85A is not a statutory provision within the proviso to s 43(1). Section 85A does not provide that costs not be awarded, only that unless the Court orders otherwise each party must bear its own costs. Section 85A(2) acknowledges further that the Court’s power to order costs has not been limited by the description in that subsection of a particular form of order the Court may make in the exercise of that discretion.
The terms of s 85A may be contrasted with statutory limitations upon the power to award costs which apply in federal courts exercising the jurisdiction conferred by the Family Law Act 1975 (Cth) and the Workplace Relations Act 1996 (Cth) in respect of matters arising under those enactments.
Section 117 of the Family Law Act 1975 (Cth) reads as follows:
“(1) Subject to subsection (2) and section 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.”
In Penfold v Penfold (1980) 144 CLR 311 the High Court determined the proper construction of s 117. Stephen, Mason, Aickin and Wilson JJ (at 315) said as follows:
“It is an accurate description of s. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117(2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s.117(2) in ‘a clear case’.”
(See also: Mallet v Mallet (1984) 156 CLR 605 per Wilson J at 631 – 632.)
The general rule installed by s 117 of the Family Law Act replaced a statutory provision that had removed a general discretion in respect of orders for costs by stipulating that the husband pay the costs of proceedings in a matrimonial cause. The Full Court of the Family Court in applying Penfold described the power conferred by s 117 of the Family Law Act as follows:
“There is no doubt that s.117 of the Family Law Act confers a broad discretion on the court in regard to costs. The discretion is to be exercised having regard to the primary rule that each party bears his or her own costs. This rule negates any principle that costs should follow the event or that the husband should bear the costs of the wife in matrimonial proceedings. Under the Act, costs will, in general, lie where they fall. Nevertheless, in deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors which were inserted into the Act in 1983 are not to be read in a restrictive way, however, the discretion remaining a broad one.”
(In the Marriage of Collins (1985) 75 FLR 84 at 89 - 90.)
Subsequent decisions of the Full Court of the Family Court have gone somewhat further.
In Marriage of I [No 2] (1995) 125 FLR 332 at 333 the Full Court of the Family Court said as follows:
“Section 117 confers upon the Court a broad discretion in relation to costs. That discretion is one which the Court should not seek to fetter.”
In Marriage of McAlpin (1993) 114 FLR 452 per Nicholson CJ and Maxwell J at 457 the power conferred by s 117 was described as a discretion that “is virtually at large in proceedings under the Act, subject of course, to the requirement that the order must be just.”
It should be noted that an alternative source of power to award costs suggested by their Honours in that case, as a “power” conferred by the “cross-vested” jurisdiction of State and Territory Supreme Courts, could not arise in the exercise of jurisdiction in a federal matter.
The Workplace Relations Act 1996 (Cth) provides as follows in respect of orders for costs:
Section 347:
“(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2)In subsection (1):
costs includes all legal and professional costs and disbursements and expenses of witnesses.”
Section 170CS:
“(1)Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:
(a)instituted the proceeding vexatiously or without reasonable cause; or
(b)caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding.
(2)Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
(3) In this section:
costs includes all legal and professional costs and disbursements and expenses of witnesses.”
Under s 347 the only party to be subject to an order for costs is the party commencing a proceeding and then only if, it is found as a fact, that that party instituted the proceeding vexatiously or without reasonable cause. Section 170CS repeats that limitation but also permits an order for costs to be made against any party to the proceeding whose unreasonable conduct in the proceeding has caused another party to incur costs.
In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Northrop J, as a Judge in the Industrial Relations Court of Australia, reviewed the history of the power to order costs in that Court. Until 1973 the Court had a general discretion in relation to costs, usually to order that costs follow the event. After 1973 the discretion was expressed to be subject to a provision in similar terms to s 347 of the Workplace Relations Act. His Honour (at 272) said in respect of that provision:
“The policy of [s 347] of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.”
The Full Court of this Court observed in Thompson v Hodder (1989) 21 FCR 467 at 470:
“It is apparent from these authorities that an applicant who has the benefit of the protection of s 347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances.”
In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 von Doussa J stated at 326:
“Section 347 imposes a threshold condition which must be met before the court is empowered to award costs, but once the condition is met, the further question remains for consideration, namely, whether in all the circumstances the party so instituting the proceeding ought to be ordered to pay costs. The court may in the exercise of its discretion, and having regard to the general policy of the Act, expressed in s 347, that parties will usually be freed from the traditional risk of an order for costs following the event, make no order as to costs.”
In Yarmirr v The Northern Territory of Australia [1998] FCA 1185 Olney J declined to make an order for costs, applying the “general principle” his Honour understood would come into effect upon proclamation of s 85A, limiting the Court’s power to order costs “to cases where a party’s conduct has been unreasonable and has caused another party to incur costs in connection with the institution or conduct of the proceeding”. Although his Honour did not purport to determine the proper construction of s 85A, the anticipation of his Honour as to the effect of s 85A when it came into force gives focus to the question of construction raised by that provision.
Section 85A of the Act does not limit the discretion of the Court to order costs in the manner set out in s 117 of the Family Law Act or ss 347 and 170CS of the Workplace Relations Act.
As drawn, s 85A acknowledges that the Court has an overriding discretion in respect of costs. In one sense, it does no more than state the obvious that in the absence of any order by the Court each party must bear its own costs. Where the discretion in the Court to award costs is at large there may be an anticipation, or expectation, by a successful party in litigation that costs will follow that event but it is not an entitlement and a court, acting judicially, may refuse to make such an order.
Being inserted as a new provision in the Act, the construction of s 85A should, if an alternative meaning is available, apply a meaning which permits the provision to carry out a function. Such a meaning which provides a function for s 85A is to remove any ground for anticipation or expectation that unless cause is shown for some other order to be made costs will usually follow the event.
The discretion of the Court to award costs is not confined. The matters to be taken into consideration in making such an order are left to the Court as a discretion to be exercised judicially. But the starting point will be that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs.
It is not a requirement of s 85A that a threshold condition be met before the Court is empowered to order the payment of costs. (See: Oshlack per Gaudron and Gummow JJ at 582.) The Court is not required to be satisfied that circumstances exist that “justified” an order for costs before such an order may be made. It follows even more plainly that the exercise of the discretion is not conditioned upon a finding of fact, or formation of an opinion, as to the occurrence of unreasonable conduct in the litigation, or existence of special reasons or particular circumstances for the making of such an order. What the Court will keep in mind is that there is to be no expectation that costs follow the event.
Section 85A(2) makes it clear that the Court may order any party, including a successful party, to pay costs incurred by others by reason of unreasonable conduct by that party in the litigation. Such a statement does not add to the discretion already possessed by the Court but reflects the public interest in such conduct being subjected to the penalty of an appropriate costs order. The subsection puts beyond doubt the extent of the Court’s discretion. (See: Oshlack per Gaudron and Gummow JJ at 586.)
Section 85A(2), in terms, does not control the operation of s 85A(1) and, in particular, does not limit the discretion available to the Court under s 85A(1).
Section 85A is a procedural measure, and not a measure affecting substantive rights. (See: Galvin v The Forests Commission of Victoria [1939] VLR 284 at 297.) As such it operates upon any order for costs to be made in this proceeding.
I now turn to the matters relevant to the discretion to be exercised according to the proper construction of s 85A set out above.
At all times after the institution of the proceeding in this Court by lodgment of the matter with the Court by the Tribunal pursuant to s 64 of the Act, including the preparation of the matter for hearing and the trial of the matter, the parties proceeded under the anticipation or expectation that an order for costs may be made consonant with the outcome of the litigation.
The litigation was important in establishing the rights of the first applicants at law and in doing so provides another determination attempting to clarify the law in a hitherto undeveloped part of the common law in Australia.
The claim of native title was opposed in all respects by the State and, less comprehensively, by the Territory. As I noted in Ward, those respondents participated in reducing areas of dispute on questions of fact to assist in making the conduct of the trial as efficient as possible, but the first applicants were put to proof of all aspects of their claim.
The position of other respondents to the litigation may be distinguished from that of the State or the Territory. The various respondents who became parties to the native title claim when it was registered with the Tribunal were necessary parties to the litigation, the first applicants seeking declarations binding upon those persons. Further, the interests of those respondents were derived from interests of the State and the Territory and whether the interests of the subordinate respondents were affected by the claim of the first applicants would depend on whether the case of the State and the Territory in opposition to the claim of the applicants was made out. Such lesser respondents were entitled to protect interests derived from the Crown by opposing the claim of the first applicants in so far as the claim affected those interests but unless they took an active role in the litigation with the object of defeating the first applicants’ claim entirely they were entitled to anticipate that they would not be mulcted in costs if the cases put by the State and the Territory were unsuccessful.
Indeed, the first applicants sought no order for costs against those respondents other than Innes. The discrimination in respect of Innes appears to have been rooted in an order for costs Innes obtained against the first applicants in an interlocutory proceeding for interim relief in a separate, albeit related, matter. Otherwise the conduct of Innes in this proceeding cannot be distinguished from the participation of like respondents. Parity would demand that no order for costs be made against Innes.
It was suggested by the State and the Territory that the degree of public interest in and the nature of the issues determined in this litigation are a reason for allowing costs to be borne by the parties to the litigation. Certainly the subject matter, scope and purpose of the Act do not exclude public interest as a relevant consideration in the exercise of discretion under s 85A. (See: Oshlack per Gaudron and Gummow JJ at 584.) However, public interest in the clarification and development of the law in litigation in which the Crown opposes claims by private individuals to entitlement, at common law to an interest in land under native title, is unlikely to provide sufficient ground in itself to disentitle the first applicants to an order for costs if otherwise such an order is appropriate in all the circumstances. (See: Botany City Council v Minister for Transport [1999] FCA 65.)
The essence of the litigation in this matter was the determination of private rights and it was not a case in which the nature of the public interest in the litigation made it appropriate that each party bear their own costs.
The State submitted that if the State had not opposed the first applicants’ claims the first applicants would have had to prove their case by adducing the same evidence and the costs incurred in that litigation would have been of like magnitude. That may be said of any litigation in which declaration of legal right is sought. The fact that in this litigation the material required to be presented by the applicants was complex and diverse does not relieve a party opposing the first applicants’ claims and putting the first applicants to proof of all aspects thereof from the risk that a costs order may be made against it.
Having been put to proof of a complex case by the State and the Territory and having succeeded in that litigation, it is just that the first applicants recover some part of the considerable costs incurred in presenting that case. Account may also be taken of the fact that, in all material respects, the litigation was prepared and completed under the usual rule that parties may expect costs to follow the event.
The State submitted that a costs order in this matter should take into account the assistance provided by the State and the Territory in establishing the tenure history of the land subject to the first applicants’ claim. It is said that the material so presented incurred costs for the State and the Territory and saved time and expense for the first applicants. On the other hand, it may be said that by contending that the tenures in the land created by the Crown had extinguished native title the State and Territory had to incur such costs in any event. Although the material provided by the Crown facilitated argument on the issue of extinguishment relied upon by the State and the Territory, the information so provided was necessary material to enable the first applicants to seek from the Court orders in terms required by the Act, recording the interests affected by a determination of native title and for the Court to be satisfied that appropriate parties had been joined. An allowance should be made for the work so undertaken by the State and the Territory by reducing by 10 per cent the costs recoverable by the first applicants, such a calculation being the best estimate of a fair apportionment having regard to the dimensions of the case.
The next question is whether in the particular circumstances of this litigation it is appropriate to apportion liability for costs between the State and the Territory. I am satisfied that such an apportionment should be made. The State presented a case which opposed the first applicants’ claims in all respects. The Territory restricted its case to the part of the claim area within the borders of the Territory and in respect of that part of the claim area the Territory sought to show that there had been extinguishment of native title. It did not assert that native title had not been held in that land by the first applicants, or at least by the second applicants. The Territory did not attend when primary evidence was taken at sites in the claim area within the State. In contrast, the State conducted substantial cross-examination of witnesses when evidence was taken at hearings at sites within the Territory. Generally, the involvement of the Territory in the litigation was more limited than the role undertaken by the State. In all the circumstances, whilst realising that the calculation of an apportionment cannot be more than that which appears to be fair having regard to all the circumstances, I consider an appropriate apportionment of costs is that the State pay three quarters and the Territory pay one quarter of the first applicants’ costs.
There will be no order for costs against Innes.
Subsequent to the hearing of the arguments dealt with above, the second applicants gave notice of application for an order that the State and Territory pay the costs of the second applicants in this proceeding.
Written submissions in support of such an order were presented by the second applicants. The Territory agreed that such an application by the second applicants be decided on the papers. The State requested that there be opportunity to present oral argument. Being satisfied that no order for costs should be made it is appropriate that I deal with the second applicants’ foreshadowed application on the papers.
The second applicants as separate parties in this proceeding, did not obtain the orders sought by them. To the extent that they were persons to whom the orders obtained by the first applicants applied, their success in the litigation was derived from the success of the first applicants. I am not persuaded that any separate order for costs should be made in favour of the second applicants in this proceeding.
The foreshadowed application for costs by the second applicants raised, however, the disposition of costs in related proceedings.
In 1994 the Territory commenced a proceeding in this Court (DG 6001 of 1994) seeking judicial review of a decision of the Registrar of the National Native Title Tribunal in respect of the application by the first applicants for a determination of native title.
A similar proceeding was commenced by the State in this Court (WAG 112 of 1994). A direction was made that the two proceedings be heard together. The first and second applicants were respondents to those proceedings.
Part of the issues raised in those proceedings was heard and determined by a Judge of this Court in 1995. (See: Northern Territory of Australia v Lane; State of Western Australia v Lane (1995) 138 ALR 544.)
The balance of the proceedings not determined was in respect of a question of extinguishment of native title, namely, the effect on native title of a grant of pastoral and other leases (“pastoral leases”) on land in respect of which native title was said to exist. It was directed in those proceedings that that issue be determined in this proceeding. On 17 March 1995 I made an order that materials filed in the above proceedings be materials filed in this proceeding.
On 20 June 1996 the Territory was given leave to discontinue its application for review in matter DG 6001 of 1994 and orders were made in respect of costs. Reasons explaining the orders for costs were provided by the Court. (The Northern Territory of Australia v Lane (O’Loughlin J, unreported, 14 June 1996 – Judgment No 465.)
On 2 October 1996 an order was made by consent that the State have leave to discontinue application WAG 112 of 1994 and similar orders were made in respect of costs.
In relevant respects the orders for costs made in DG 6001 of 1994 and WAG 112 of 1994 read as follows:
“…
2.The [State, Territory] pay the costs of the [first applicants] and the costs of the [second applicants] of and incidental to these proceedings up to and inclusive of 29 March 1995 plus the costs of … and incidental to their attendance to take judgment in the proceedings on 24 August 1995.
3.Subject to paragraph 4 hereof, the question of costs of the [State, Territory], the costs of the [first applicants] and the costs of the [second applicants] of these proceedings, including all reserved costs (but excluding the costs referred to in paragraph 2 hereof…) be costs in the cause in Action No WAG 6001 of 1995.
4.If for any reason howsoever the costs that are the subject of paragraph 3 hereof (or any part or parts of them) are not made the subject of final determination in Action No WAG 6001 of 1995 those costs (or such part or parts of them as the case may be) are reserved for further consideration in these proceedings.”
The order for costs to be made in favour of the first applicants in this proceeding will be an order to which item 3 of the orders made in DG 6001 of 1994 and WAG 112 of 1994 refers.
In the absence of a like order in favour of the second applicants in this proceeding the claim of the second applicants for costs incurred after 29 March 1995 in the discontinued proceedings on the question of the effect of “pastoral leases” must be determined in those proceedings pursuant to item 4 of the relevant orders.
It may be noted that in respect of the cause of “pastoral leases” the case presented by the first and second applicants succeeded in substantive respects in this proceeding.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 6 May 1999
Counsel for the First Applicants: A M Sheehan Solicitor for the First Applicants: Aboriginal Legal Service of Western Australia (Inc) Counsel for the Second Applicants: R M D Levy Solicitor for the Second Applicants: Northern Land Council Counsel for the Second Respondent: R J Webb Solicitor for the Second Respondent: Solicitor for the Northern Territory Counsel for the Thirteenth Respondent: P L Wittkuhn Solicitor for the Thirteenth Respondent: McLeod & Co Date of Hearing: 26 February 1999 Date of Judgment: 6 May 1999
10
21
0