FEDERAL COURT OF AUSTRALIA

Edwards v Santos Limited (No 2) [2010] FCA 238

THE COURT ORDERS THAT:

1.                  The applicants pay the first and third respondents’ costs of and incidental to the application, including the summary judgment application, to be taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     In December 2009, for reasons which I then published, I ordered that the application made by the applicants be dismissed:  Edwards v Santos Limited [2009] FCA 1532.

2                     The State of Queensland, which is the second respondent in the proceedings, did not then seek any order as to costs. Santos Limited (Santos) and Delhi Petroleum Pty Ltd (Dehli Petroleum), the first and third respondents respectively, did then seek an order in respect of their costs.  Having regard to a need for the parties to assimilate lengthy reasons for judgment, the time of year and the convenience of counsel, I did not regard it as appropriate to hear submissions on that subject then and there.  Instead, I made directions for the filing and service of written submissions.  Those submissions are now to hand.  I have considered them.

3                     It is common ground between the applicants, Santos and Dehli Petroleum, that s 85A of the Native Title Act 1993 (Cth) (the Native Title Act) has no direct application in the circumstances of the present case.  I agree:  The Lardil Peoples v Queensland (2001) 108 FCR 453 at 494-5 at [157]. Thus the question is how to exercise the discretionary power in respect of the awarding of costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act)?  Usually, but not invariably, the exercise of that discretion calls for an order that costs follow the event.  Much lies behind the qualification “not invariably”.  It is trite but necessary to remind oneself that the costs discretion falls to be exercised by reference to the circumstances of a particular case, not an inflexible rule. 

4                     As to this, the parties have each appreciated that, in what might be described as native title related cases, even though s 85A of the Native Title Act is not directly applicable, judges of this Court have nonetheless regarded it as relevant, in the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act, to take into account the “spirit” of s 85A.  One way of recalling that “spirit” is to read the lengthy preamble to the Native Title Act which culminates in a statement by the parliament that the Native Title Act was intended to further advance the process of reconciliation among all Australians. The Native Title Act was never intended to be exhaustive of the way in which that worthy end might be achieved.

5                     In Fesl v Delegate of Native Title Registrar (No 2) (2008) 173 FCR 176 and by reference to earlier authority, I set out at [22] – [26], in a non-exhaustive way, a number of factors to which regard might be had in deciding whether or not to award costs in native title related matters:

(a)                the reasonableness of the conduct of the applicants in bringing their application;

(b)                whether the application involved the construction of important provisions of the Native Title Act;

(c)                whether the application raised novel issues of public importance;

(d)                whether there was a disparity of resources available as between the applicants and the respondents;

(e)                whether the applicants prosecuted their application with due diligence;

(f)                 whether the application was advanced on grounds other than native title.

6                     Each of the parties in this case was represented by senior and junior counsel.  I accept though that it does not follow from this that each had available to it, or them, the same ability readily to take advantage of legal advice.  Effectively, the respondents had access to the resources of a well known public company or, as the case may be, a body politic.  Even in the absence of direct evidence, I doubt that, either individually or collectively, the applicants could command anywhere near the resources of either respondent grouping.  For all that though, the applicants did have notice at an early stage that a challenge to jurisdiction was to be made and made on the basis of intermediate appellate authority: The Lardil Peoples v Queensland (2001) 108 FCR 453.  Though thereafter the applicants prosecuted their case with due diligence, they did so in the face of this notice.  Their resources were at least sufficient for them to do this and, necessarily, for those advising them to take into account the challenge to jurisdiction. 

7                     It is true, as the applicants submit, that their motivation in bringing the proceedings was to resolve a dispute in negotiation with respect to the making of an indigenous land use agreement.  It is also true that the applicants’ status as registered native title claimants alone would make them a proper party to an indigenous land use agreement, without a need to establish native title:  s 24CD(1) and s 24(2)(a) of the Native Title Act.  It does not follow from this that they had any standing to bring their application or that this Court had any jurisdiction to entertain it. 

8                     It is by no means impossible to see how the applicants might have joined an application for the relief sought in the present case to a substantive native title application brought by them in this Court.  Santos and Dehli Petroleum concede as much in their submissions.  Yet the applicants, as a matter of deliberate forensic choice and in the face of The Lardil Peoples 108 FCR 453, chose not to do this.  Part of this choice must, necessarily, given the legal advice to which the applicants did have access, also have been an appreciation that the Full Court had ordered costs in the Lardil Peoples’ appeal:  The Lardil Peoples v Queensland [2001] FCA 464. 

9                     In a sense, there is a public importance about the delineation of whether persons in the applicants’ position have standing and whether the Court may entertain an application such as the present.  That public interest is not, though, self evidently greater than that of Santos and Dehli Petroleum in being able to conduct their business affairs without the burden both as to costs and otherwise of unnecessary litigation, especially given earlier intermediate appellate authority on the subject.  The doors of courts exercising federal jurisdiction are open to everyone, except those who seek advisory opinions.

10                  It only comes to this.  For reasons which will be evident from the preceding paragraphs and in the circumstances of this case, I am not persuaded, either by reference to the “spirit” of s 85A of the Native Title Act, or otherwise, that it is appropriate to do anything other than exercise the discretion as to costs in the usual way.  Santos and Dehli Petroleum did not submit that costs should be awarded on an indemnity basis and I should not, in any event, have been inclined to award costs on that basis.  I therefore order that the applicants pay the first and third respondents’ costs of and incidental to the application, including the summary judgment application, to be taxed.

Associate:

Dated:         17 March 2010