FEDERAL COURT OF AUSTRALIA

Tucker v State of Western Australia [2014] FCA 23

THE COURT ORDERS THAT:

1.    The proceeding be discontinued.

2.    There be no order as to costs.

THE COURT NOTES THAT:

    The Kurrku Applicant reads the affidavits of Mr Mark Andreas Rumler of 22 November 2013, the affidavit of Matthew Michael Moharich of 28 November 2013 and the affidavit of Matthew Michael Moharich of 2 December 2013 in support of its Interlocutory Application dated 22 November 2013 to discontinue the proceeding.

    No respondent opposes the interlocutory relief sought.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    These are reasons for orders I made on 6 December 2013, granting leave for the native title determination application filed by Fabian Tucker and others on behalf of the Kurrku claimants on 9 December 2010 (Kurrku claim) to be discontinued with no orders as to costs. Those orders were sought by the Kurrku applicant in its interlocutory application dated 22 November 2013 (discontinuance application). No respondent opposed the interlocutory relief sought.

BACKGROUND AND EVIDENCE

2    The discontinuance application was supported by three affidavits sworn by two solicitors employed by the Goldfields Land and Sea Council (GLSC), the solicitors on the record for the Kurrku applicant. Those affidavits were as follows:

    affidavit of Mr Mark Andreas Rumler dated 22 November 2013;

    affidavit of Mr Matthew Michael Moharich dated 28 November 2013; and

    affidavit of Mr Matthew Michael Moharich dated 2 November 2013

3    On 23 October 2013 I ordered that the Kurrku applicant provide its draft connection report by expert anthropologist Dr Vachon to the State of Western Australia (the State) on a confidential basis by 22 November 2013 after granting several previous extensions.

4    Mr Rumler gave evidence that following a conference with senior counsel on 19 July 2013 about the connection report, on 25 and 28 October 2013 he caused notices to be sent by mail to all members of the Kurrku claim group (approximately 184 people) advising them of a claim group meeting to be held in Kalgoorlie on 13 November 2013. The notice stated that GLSC was convening the meeting to provide legal advice and update the claim group members on the status of the Kurrku claim, particularly in relation to the anthropological research conducted by Dr Vachon about the claim area, the provision of that connection report to the State and the future steps in relation to the claim and whether the claim group should give instructions to discontinue the claim. On 30 October 2013, a notice of meeting for 12 November 2013 was also sent out to all members of the Kurrku Working Group.

5    On 12 November 2013 Mr Rumler along with two other GLSC solicitors attended a meeting of the Kurrku Working Group, which is comprised of senior representatives of the Kurrku claimant families. Mr Rumler gave evidence that there was a great deal of discussion about the possibility of discontinuing the Kurrku claim and that the number of people who attended the Working Group meeting was consistent with previous meetings.

6    On 13 November 2013 Mr Rumler attended a claim group meeting in Kalgoorlie along with 36 claimants, two other solicitors from the GLSC, Dr Vachon and two GLSC staff. Included in the 36 claimants in attendance at the meeting were seven of the eleven members constituting the Kurrku applicant. Following extensive discussions, a resolution was passed unanimously that the Kurrku claim be discontinued. Prior to the resolution being passed, the meeting received legal advice from Mr Rumler and Mr Moharich about whether or not the State was likely to negotiate a consent determination following the provision of the draft connection report.

7    In Mr Rumler’s opinion the claim group meeting was well attended and representative of the claimant families. He noted that previous Kurrku claim group meetings convened in March 2011 and March 2012 had been attended by 38 and 41 people respectively

8    Mr Rumler was advised, and believed, that five days after the claim group meeting Mr Jacobs, a solicitor employed by the GLSC, spoke to Mr Wayne Smith and Ms Donna Johnston, two members of the Kurrku applicant who did not attend the claim group meeting. Neither Mr Smith nor Ms Johnston raised any objection the claim group discontinuing the claim; both advised Mr Jacobs that they would abide by the claim group’s decision.

9    The other two persons comprising the Kurrku applicant who did not attend the claim group meeting were Mr Nigel Dann and Ms Celia Sullivan. Mr Moharich gave evidence that following numerous efforts to contact Mr Dann, on 27 November he spoke to Mr Dann about the resolution to discontinue the claim that was passed at the claim group meeting. Mr Dann did not raise any objection to the discontinuance motion and advised that he would abide by the claim group’s decision. Similar evidence was given in relation to Ms Celia Sullivan. Mr Moharich spoke to her on 28 November 2013 and 2 December 2013.

THE PRINCIPLES IN RELATION TO DISCONTINUANCE

10    Rule 26.12(1) of the Federal Court Rules 2011 (Cth) (FCA) provides that a party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48. However, r 26.12(4) FCA provides that a representative party must not discontinue a party’s claim without first obtaining the leave of the Court: see also Close on behalf of the Githabul People #2 v State of Queensland (2010) 190 FCR 182 per Collier J (at [2]); Ankamuthi People v State of Queensland (2002) 121 FCR 68 and McKenzie v State of South Australia [2006] FCA 891 (at [5]).

11    As noted by Collier J in Githabul People #2 (at [35]), generally an applicant will be granted leave to discontinue if he or she wants to, provided no injustice has been caused to the respondent(s): see also Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 per Graham J (at 879) for the well-known statement that a litigant should not be made to litigate against his or her will. In the present case, the GLSC received a draft connection report from Dr Vachon and the benefit of legal advice from senior counsel in relation to that report. That advice was disseminated to the Kurrku applicant by its instructing solicitors and discussed prior to voting on the discontinuance resolution.

12    At the mention of the discontinuance application at the Goldfields regional directions hearing on 6 December 2013, the instructing solicitor for the State indicated that there was no opposition to the orders sought. Nor did the instructing solicitor for various mining interests (Ravensthrope Nickel Operation), pastoral interests and Telstra Corporation Ltd oppose the relief sought. The respondents were on notice of the discontinuance application and had sufficient opportunity to bring to my attention any prejudice that would be caused to them by the granting of leave.

13    As observed by Collier J in Githabual People #2 (at [21] and following), the Kurrku applicant has authority to seek leave to discontinue the claim by virtue of s 251B and s 62A of the Native Title Act 1993 (Cth) (NTA). Section 251B NTA describes the alternative methods for authorising an applicant ‘to make a native title determination application… and to deal with matters arising in relation to it’. In the present case, Form 1 of Kurrku claim states that at the original authorisation meeting held on 22 June 2010 in Laverton, those participating in the meeting determined that all the people who collectively comprise the Kurrku applicant were authorised to make the claim and to deal with matters arising in relation to it in accordance with a decision making process under traditional laws and customs:

The traditional method of decision making involves the members of the native title claim group discussing the matter among themselves and then coming to a decision by way of consensus.

On the evidence, this is clearly what occurred at the meeting on 13 November 2013.

14    Additionally s 62A NTA provides in the case of a claimant application, ‘the applicant may deal with all matters arising under the NTA in relation to the claim’. I agree with Collier J’s conclusion in Githabual People #2 (at [32]) that ‘an applicant’s authority to deal with all matters arising under [the NTA] in relation to the application does extend for applying for leave to discontinue it’. Nevertheless the holding of the claim group meeting in the present case on 13 November 2013, which included seven out of eleven persons constituting the Kurrku applicant, the unanimous passing of the discontinuance resolution, and the lack of subsequent objections from the four members of the Kurrku applicant who did not attend the meeting, is evidence that the Kurrku applicant remained properly authorised to give the instructions it did in relation to making the discontinuance application.

15    For completeness I note that while no Form 28 Notice of Discontinuance has formally been filed as contemplated by r 26.12(1) FCR by the Kurrku applicant, r 134 FCR provides that the Court may dispense with compliance with the Rules, either before or after the occasion for compliance arises. In the present case, the discontinuance application was filed, moved in open court with supporting affidavits formally read by counsel, in the presence of represented respondents who were on notice. In those circumstances I formed the view that it was sufficient to make an order granting leave and discontinuing the proceeding without the need for the filing of a Form 28.

COSTS

16    The second order sought by the Kurrku applicant was no order as to costs. As Finn J noted in McKenzie (at [6]-[8]):

[6]    The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13].

[7]    The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides:

“(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.”

[8]    The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the “unreasonable conduct” of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs.

(emphasis added)

17    In McKenzie Finn J concluded (at [9]-[10]) in the context of that discontinuance application that it was ‘perfectly clear that a costs order should be made in favour of the two respondents’. This was because the respondents there had been required ‘to perform a tutelary function in relation to the conduct of [the] proceeding to date’ and that function was discharged ‘in the interests of the orderly conduct of [the] proceedings and has assisted to that end’. His Honour also noted that there was ‘a reasonable basis for concluding that the originating application and the amendment proposed were seriously defective in relation to the claim group description.

18    I was not, of course, privy to the contents of the Kurrku applicant’s draft connection report, which was due to be provided to the State of Western Australia by 22 November 2013 on a confidential basis. Nor was I privy to details of the advice that was provided to the Kurrku applicant by senior counsel on 19 July 2013, although Mr Moharich in his affidavit of 29 August 2013 deposed that that senior counsel ‘advised that consideration should be given to reducing the area of the application’. Although there were lengthy and unsatisfactory delays on the part of the Kurrku applicant in finalising that connection material, obtaining legal advice from senior counsel and organising the claim group meeting, resulting in the filing of two earlier interlocutory applications to seek extensions of time, it seems to me that ultimately the GLSC acted reasonably by seeking legal advice from senior counsel before convening a meeting with the Kurrku applicant to discuss the progress of the claim. The present discontinuance application, sought unanimously by both the named applicant and the actively participating members of claim group, seems to me the most efficient way of progressing matters generally, without limiting the rights of the parties.

19    I also note that no respondent has sought its costs. Accordingly I make no costs order.

CONCLUSION

20    Accordingly for the above reasons, the proceeding was discontinued on 6 December 2013 in the terms sought by the Kurrku applicant.

Associate:

Dated:    31 January 2014