Yarmirr v The Northern Territory of Australia

[2000] FCA 945

FEDERAL COURT OF AUSTRALIA

Yarmirr v The Northern Territory of Australia [2000] FCA 945

Matter No. DG6006 of 1998

MARY YARMIRR & OTHERS v THE NORTHERN TERRITORY OF AUSTRALIA & OTHERS

BEAUMONT, von DOUSSA & MERKEL JJ
13 JULY 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DG6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
Appellants

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

PASPALEY PEARLS
Third Respondent

FISHING INDUSTRY COUNCIL INC
Fourth Respondent

OCEAN TRAWLER PTY LTD
Fifth Respondent

SHINE FISHERIES PTY LTD
Sixth Respondent

MCKAILIS GULF FISHERIES PTY LTD
Seventh Respondent

MS PAVALINA HENWOOD
Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent

JUDGE:

BEAUMONT, von DOUSSA & MERKEL JJ

DATE OF ORDER:

13 JULY 2000

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        On the Notice of Motion filed by the appellants on 22 December 1999 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
NORTHERN TERRITORY DISTRICT REGISTRY	DG6006 OF 1998

BETWEEN:

MARY YARMIRR AND OTHERS
Appellants

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

PASPALEY PEARLS
Third Respondent

FISHING INDUSTRY COUNCIL INC
Fourth Respondent

OCEAN TRAWLER PTY LTD
Fifth Respondent

SHINE FISHERIES PTY LTD
Sixth Respondent

MCKAILIS GULF FISHERIES PTY LTD
Seventh Respondent

MS PAVALINA HENWOOD
Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent

JUDGE:	BEAUMONT, von DOUSSA & MERKEL JJ
DATE:	13 JULY 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:           

1. After the judgment was handed down by the Full Court in the present matter the appellants applied by Notice of Motion for the reopening of the appeal for the purpose of determining ground 2 of the Notice of Appeal.

2. On 3 February 2000, the Full Court declined to reopen the appeal as requested by the appellants.  In the result the Full Court made no order on the Notice of Motion but reserved liberty to any party to apply in writing for any costs of the motion.

3. The Northern Territory of Australia (the Territory) has filed a written submission applying for its costs in connection with the appellants’ Notice of Motion.  The Territory submitted that costs should follow the event and, as the appellants were unsuccessful on the motion, they should pay any costs incurred by the Territory in connection with it.  No other party has sought costs, but the appellants have filed a written submission resisting the Territory’s application.

4. As was acknowledged by the Territory the award of costs is in the discretion of the Court.  In the present matter the Court declined to make any order for costs of the appeal and the cross appeal after having arrived at the view that all of the parties should bear their own costs.  The costs of the motion could not be significant.  The motion sought to raise a relatively minor issue that arose in the course of the appeal.  In all the circumstances, we are of the view that any costs incurred in respect of the motion should be treated as part of the parties’ costs of the appeal and of the cross appeal and should be borne by the parties themselves.  Accordingly, we decline to make the order for costs sought by the Territory.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             

Counsel for the Appellants:	Mr J Basten QC
Solicitor for the Appellants:	Northern Land Council
Counsel for the 1st Respondent:	Mr T Pauling QC
Solicitor for the 1st Respondent:	Solicitor for the Northern Territory
Solicitor for the 2nd Respondent:	Australian Government Solicitor
Solicitor for the 3rd to 7th Respondents:	Cridlands
No appearance for the 8th & 9th Respondents
Date of Hearing:	21 January 2000
Date of Judgment:	13 July 2000