FEDERAL COURT OF AUSTRALIA

Corunna v South West Aboriginal Land and Sea Council (No 2) [2015] FCA 630

THE COURT ORDERS, FURTHER TO THE ORDERS MADE ON 20 MAY 2015, THAT:

1.    The applicant pay the costs of the first respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    On 20 May 2015, the Court found that the originating application filed 29 January 2015 by the applicant, Mr Albert Corunna, should be summarily dismissed on the ground that Mr Corunna had no reasonable prospect of successfully prosecuting the proceeding. See Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491.

2    Pursuant to orders I then made, the first respondent, South West Aboriginal Land and Sea Council (SWALSC), now seeks an order that Mr Corunna pay the costs of and incidental to SWALSC’s interlocutory application for summary judgment filed 27 March 2015. (The State of Western Australia, which succeeded on a similar application, makes no such costs application.)

3    Two key questions are raised by SWALSC’s costs application:

(1)    Whether –

(a)    s 85A of the Native Title Act 1993 (Cth) (NTA) applies to affect the exercise of the Court’s usual discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act); and

(b)    if it does, whether the Court should make an order that Mr Corunna pay some or all of SWALSC’s costs.

(2)    If s 85A does not apply, whether SWALSC is entitled to the costs order it seeks.

Does s 85A of the NTA apply?

4    Section 43 of the FCA Act is the statutory source of the Court’s power to award costs in all proceedings before the Court, save for those Acts that make other provision. Section 43(1) provides that the Court or a judge has jurisdiction to award costs in all proceedings before the Court “other than proceedings in respect of which this or any other Act provides that costs must not be awarded”, subject to particular statutory provisions not presently relevant. By s 43(2) and “[e]xcept as provided by any other Act”, the award of costs is in “the discretion of the Court or Judge”. It is understood that when the Court or judge exercises the costs discretion under s 43, that discretion must be exercised judicially: see Ruddock v Vadarlis (2001) 115 FCR 229 at [9]-[10]; [2001] FCA 1865.

5    Section 85A of the NTA provides that:

(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.

6    Section 85A of the NTA is not an Act that provides that costs must not be awarded and so it is not a disqualification of the “jurisdiction” to award costs conferred on the Court by s 43(1). However, it is a provision that affects the exercise of the costs discretion, and so falls within the qualification “except as provided by any other Act” for the purposes of s 43(2).

7    The question then is, having regard to s 85A, whether it applies in the particular context of this proceeding commenced by Mr Corunna.

8    The first question of construction relates to the type of “proceeding” to which s 85A(1) refers.

9    Section 85A appears in Div 1A of Pt 4 of the NTA. Section 80, the first provision in Div 1A, deals with the “Operation of Part” and provides that:

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

10    Thus, a “proceeding” for the purposes of s 85A will be one which can be characterised as a proceeding in relation to applications filed in the Federal Court that relate to native title.

11    It will immediately be noticed that this composite expression engages two qualifying expressions: “in relation to” and “that relate to” native title. Ordinarily, expressions like these expand, rather than contract, the range of matters that fall within a particular category or class described.

12    Section 80, however, is very much a headline provision dealing with, as it states in the heading, the operation of Pt 4.

13    Section 81 immediately proceeds to indicate what the jurisdiction of the Federal Court is, in the following terms:

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

14    Again, it will immediately be noticed that the Court’s jurisdiction that is made exclusive (except in the case of the High Court) is in respect of applications filed in the Federal Court that relate to native title. That composite expression also engages two terms: “applications filed in the Federal Court” that “relate to native title”. The first implies applications filed in relation to which the Court has jurisdiction, and the second identifies the character or nature of the application.

15    Section 61, within Div 1 (entitled “Applications to the Federal Court: native title and compensation”) of Pt 3, deals with “Native title and compensation applications” and includes native title determination applications, non-claimant applications and compensation applications.

16    Section 69(1), which falls within Div 1A (entitled “Other applications to the Federal Court”) of Pt 3 and is headed “Applications that may be made”, includes claim registration applications, applications to remove an agreement from the Register and applications about the transfer of records.

17    Section 69(2), which has the subheading “Other applications”, however further provides that:

This Division also applies to any other application to the Federal Court in relation to a matter arising under this Act.

(Emphasis added.)

18    Here, the terms of s 213(2) should also be mentioned, as it appears to be the particular provision that confers on the Court the jurisdiction to deal with “matters arising under this Act”:

(2)     Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

19    It should further be noted, in passing, that s 213(2) appears to involve the specific conferral of a jurisdiction that is otherwise conferred on the Court as part of its “original jurisdiction” by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), which provides:

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

20    Section 213 of the NTA has been in the same terms since the NTA was enacted in 1993; and the full terms of it are:

Native title to be determined in accordance with this Act

(1)     If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

Matters arising under this Act

(2)     Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

21    Section 39B(1A) of the Judiciary Act, conferring a more general original jurisdiction on the Court, was inserted more recently, in April 1997.

22    Of these competing or overlapping provisions and their history, in The Lardil Peoples v State of Queensland (2001) 108 FCR 453 at [41]-[42]; [2001] FCA 414, French J (as his Honour then was) observed:

Section 213 of the NTA stands unamended since 1993. Section 39B(1A) of the Judiciary Act confers general jurisdiction on the Court in matters arising under a law of the Commonwealth. The generality of that grant of jurisdiction is subject to any restrictions imposed by statute in respect of any particular subject matter. Such a restriction, albeit of a procedural character, may be seen as imposed by s 213(1) of the NTA. Prior to the 1998 amendments the jurisdiction of the Court to decide a native title determination application did not arise until the application had been lodged with the National Native Title Tribunal, the National Native Title Tribunal had failed to resolve it and the matter had been referred to the Court under s 74. This was the effect of ss 80 and 81 prior to the 1998 amendments. The amendments altered the process so that applications for native title determination were thereafter to be commenced as proceedings in the Court and referred to the Tribunal for mediation subject to the power of the Court to terminate such mediations. This is reflected in the current form of ss 80 and 81. The restriction set out in s 213(1) remains but seems to have little effective operation in light of the new procedures.

The jurisdiction of the Court under the NTA prior to the 1998 amendments, was referred to by the High Court in Fejo v Northern Territory (1998) 195 CLR 96 at 123. That case concerned proceedings for declaratory and injunctive relief brought on behalf of the Larrakia People in respect of the grant of a lease over land in relation to which they asserted native title. The Court however did not determine the jurisdictional question, focusing rather upon the requirements for interlocutory injunctive relief. The application in the Fejo case was initiated in the Federal Court after the enactment of s 39B(1A) of the Judiciary Act. There was no discussion of the relationship between s 213 of the NTA and s 39B(1A) of the Judiciary Act. An assumption was made for the sake of argument that the ‘matter … arose under the Act so as to attract the jurisdiction of the Federal Court’ (123).

23    Returning to s 81, on the face of it, a reasonable construction of the long expression “applications filed in the Federal Court that relate to native title” used there picks up the sorts of applications to which both ss 61 and 69 refer. This first blush construction though, may be altered by consideration of the immediately following words of s 81: “and that jurisdiction is exclusive”. If, as a matter of construction, an application not under s 61, but say under ss 213(2) and 69(2), concerns an issue arising under the NTA, is the Court’s jurisdiction in respect of the application “exclusive”? Section 81 suggests it is. If it is not, then on the proper construction of the NTA, it may be argued that s 85A is only intended to affect the award of costs in a proceeding where the Court exercises exclusive jurisdiction. This is not an easy issue to resolve.

24    In Cheedy v Western Australia (No 2) (2011) 199 FCR 23; [2011] FCAFC 163, the Full Court (North, Mansfield and Gilmour JJ) at [35] said that the reference to “a proceeding” in s 85A takes its meaning from ss 80 and 81. Their Honours added that the textual references referred to earlier in their judgment indicated that applications that “relate to native title”, referred to in s 81, should not be unduly confined to proceedings claiming a determination of native title or compensation under s 61. Their Honours said that where the provisions of Div 1A (of Pt 4) are intended to be so confined, they expressly say so.

25    At [36], the Full Court added that the specific provisions referred to in ss 84 and 84C (that is ss 61, 61A and 62) are in Div 1 of Pt 3 dealing with native title and compensation applications; and that the more general operation of the other provisions in Div 1A must either be confined to the three discrete applications in s 69(1) or have a more broad application.

26    At [37], their Honours said the expression “relate to native title” is on its face a wide expression and stated:

It is in the context of Pt 3 encompassing not just applications to the Court made under Pt 3, Div 1 but also applications to the Court referred to in Div 1A, which includes s 69(2) providing for ‘any other application’ to the Court in relation to a matter arising under the NT Act.

27    Their Honours further considered that the limited right of appeal from decisions of the National Native Title Tribunal on a “right to negotiate” arbitral application under s 169, which was the nature of the proceeding before the Court in that case, would also be in contemplation of s 69(2).

28    The Court then said, at [39], that the decision whether s 85A applies directly should not be made by reference to whether the Court is exercising exclusive or non-exclusive jurisdiction, but rather by reference to the terms of s 85A, its position in the NTA and surrounding provisions, and the textual terms, in that case, of s 169 under which the proceeding arose.

29    Their Honours, at [41], however, also noted what Greenwood J had said in Akiba v Queensland (2010) 184 FCR 406 at [45]-[46]; [2010] FCA 321, concerning what Dowsett J, with whom French J agreed, had said in Lardil about s 85A:

In Lardil v Queensland 108 FCR 453, Dowsett J at [156] (French J agreeing at [68]), concluded that the jurisdiction conferred by Pt 4 supplements the operation of Pt 3 and that an application which relates to native title for the purposes of s 81 is an application made pursuant to Pt 3 (as contemplated by s 13(1) or s 50(2)). That, in their Honours’ view, would not include ‘any other application’ referred to in s 69(2) or a “matter arising under the Act” for the purpose of s 213(2). Thus, their Honours considered that the conferment of jurisdiction pursuant to s 81 is limited to matters arising under Pt 3 (that is, as Dowsett J had earlier discussed, the three applications contemplated by s 61(1), namely, an application for a determination of native title; an application for revocation or variation of an approved determination of native title, or a determination of compensation under s 50(2)).

The point of the majority analysis is reflected in the conclusion at [157] that a ‘proceeding’ for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred in relation to matters arising under the Act. Since, in Lardil v Queensland, the Court was exercising the subject matter jurisdiction conferred by s 213(2), s 85A did not apply to those proceedings: [159].

30    The Court in Cheedy said the analysis of Greenwood J “accurately reflects the decision of the Full Court in that case”, but that it did not directly deal with the issue whether an application under s 169 of the NTA attracted the direct application of s 85A.

31    Their Honours, at [42], said:

The role ascribed to s 69(2) in that case [Lardil] is inconsistent with the line of reasoning adopted above. It is, however, unnecessary to decide whether these appeals from the decision at first instance under s 169 of the NT Act are distinguishable from Lardil Peoples, since that case did not decide the point. Nor can it be considered it should not be followed as it is plainly wrong … That is because it is not necessary on these appeals to determine the issue.

32    The Court went on to say, at [43], that whether s 85A applied directly, or whether the Court applied the “spirit” of s 85A – by inference, in the course of the judicial exercise of the s 43 costs discretion – the result was the same. Their Honours explained, at [44], that that was because in the particular circumstances of that case it was not a matter where indemnity costs should be ordered.

33    In Cheedy (as here), the State, which was one of the parties to the appeal, did not seek a costs order when it was successful on the appeal; however, another party, Fortescue Metals Group (FMG), applied for costs on an indemnity basis or alternatively on a party/party basis.

34    The Full Court, having decided that indemnity costs were not appropriate, considered, having regard to the particular circumstances of the case, that there should be an order that the appellant in each appeal pay one half of the costs of FMG of each of the appeals. The reasons leading to that conclusion included the way the appellant conducted the appeal and the grounds actually pressed at the appeal.

35    As a result, the apparently differing approaches to the application of s 85A indicated in Lardil and Cheedy remain; although Cheedy expressly refrained from saying Lardil was wrong. Lardil, on the face of it, is binding on this Court, or at the very least is very persuasive authority on the point. But Cheedy is not irrelevant.

36    A number of other decisions of this Court have held that judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not “proceedings” under the NTA while nonetheless concerning matters arising under the NTA and its interpretation; and that s 85A does not directly apply to the exercise of the costs “jurisdiction” in relation to them. See, for example, Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402; [2003] FCAFC 220; Northern Territory of Australia v Doepel (No 2) [2004] FCA 46.

37    In Stock v Native Title Registrar (No 2) (2014) 140 ALD 203; [2014] FCA 202 I also rejected a submission that a judicial review application to review the validity of the registration of a native title claim under the NTA was a proceeding to which s 85A applied. I found, at [15], that the proceeding related to the registration of a claimant application made under the NTA but that fact of itself did not give the judicial review proceeding the character of a proceeding related to native title. I said that, put another way, the relationship of the judicial review proceeding to native title was so indirect that it should not be considered a relationship that falls within the category of applications filed in the Court that “relate to native title”.

38    In Lardil, the Full Court considered whether the appellants, registered native title claimants, could successfully challenge the decision of the State of Queensland (Acting Regional Harbour Master) to grant an authority to establish a buoy mooring within the area the subject of the appellants’ claim. The primary application ultimately failed because there was no evidence to suggest that the future act in question would in fact affect native title rights and interests. French J, at [43], and Dowsett J, at [156]-[157], considered that the source of the Court’s jurisdiction to hear and determine the proceeding was not pursuant to ss 81 or 213(1) of the NTA. However, their Honours considered the Court had jurisdiction to deal with it under s 213(2) of the NTA or s 39B(1A) of the Judiciary Act; and had the power to grant the declaratory or injunctive relief sought, if appropriate, under s 23 of the FCA Act.

39    Dowsett J, with whom French J agreed, decided that s 85A did not apply directly because the proceeding was brought pursuant to s 213(2) and was therefore not within the exclusive jurisdiction of the Court (at [150]). His Honour, at [153]-[159], said that the application of s 85A was confined to matters arising under the exclusive jurisdiction conferred by s 81 of the NTA and not merely matters that relate to native title.

40    Dowsett J, at [156], considered that it was difficult to avoid the conclusion that the jurisdiction conferred by Pt 4 of the NTA was intended to supplement the operation of Pt 3, that the conferment of jurisdiction pursuant to s 81 is limited to the matters arising under Pt 3 and that s 213(2) confers jurisdiction not otherwise expressly conferred under the NTA.

41    In other words, the majority view in Lardil must be taken to be that, on the proper construction of the NTA, the only jurisdiction that is exclusive to the Federal Court is that relating to applications made under Pt 3 (but not including applications under s 69(2) and jurisdiction conferred by s 213(2) of the NTA or s 39B(1A) of the Judiciary Act).

42    In this case Mr Corunna sought to argue that he had a certain right under the NTA. His argument was that as a member of an unregistered native title claim group he was entitled under the NTA to separately authorise the relevant proposed indigenous land use agreements (ILUAs). On that issue I have found that he has no reasonable prospect of succeeding. But the issue raised, it must be said, was one “arising under” the NTA. It dealt directly with the proper construction of the NTA and whether or not it gave Mr Corunna the sort of right he contended for.

43    The case that Mr Corunna ran, therefore, was more akin to that of the appellants in Lardil than that of the appellant in Cheedy; and quite different from the judicial review cases such as that I decided in Stock and the other cases referred to above. This proceeding, unlike that in Cheedy, does not arise under a specific provision of the NTA.

44    Under the prevailing authority of Lardil, the originating application made by Mr Corunna is not one that falls within the exclusive jurisdiction of the Court. On the basis that s 85A of the NTA only applies to an application of that nature, s 85A cannot apply in the circumstances of this proceeding.

45    It might be said there is good reason for such an outcome. It might be considered a surprising outcome if, by force of the expression in s 81 of the NTA– “and that jurisdiction is exclusive” – the Federal Court gained an exclusive jurisdiction in respect of proceedings commenced in the Federal Court under s 213(2) of the NTA. Certainly there is nothing in that provision or in s 39B(1A)(c) of the Judiciary Act to suggest that a proceeding commenced in the Federal Court under such provisions falls into the exclusive jurisdiction of the Court.

46    As Dowsett J noted in Lardil, at [158], in Brownley v Western Australia (No 2) (1999) 95 FCR 172; [1999] FCA 1431, Lee J was concerned with an application for judicial review of a decision of the National Native Title Tribunal but concluded that such proceedings were not within the jurisdiction conferred by s 81 and therefore not subject to s 85A. Lee J observed, at [21], that the Federal Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth), under which that proceeding was brought, was not exclusive, and that:

It would be most unlikely that Parliament intended to establish different ‘rules’ in respect of the costs of litigation in a federal matter depending upon the choice of forum.

47    That is a valid and important point to note and it was a point of significance in Dowsett J’s judgment in Lardil at [159].

48    In short, it seems to me that I should apply the reasoning in Lardil because it is not plainly wrong. That reasoning precludes Mr Corunna’s application being considered one to which s 81 and therefore s 85A of the NTA apply.

49    I find that s 85A does not apply to the exercise of the costs discretion in this proceeding.

50    In these circumstances, the question does not arise whether s 85A(1) should be applied in this proceeding or whether Mr Corunna should pay costs in whole or in part to SWALSC having regard to the terms of s 85A(2).

Is SWALSC entitled to the costs order it seeks?

51    The remaining question is whether, having regard to the judicial exercise of the costs discretion conferred on the Court by s 43 of the FCA Act, SWALSC is entitled to the costs order it seeks, or whether the Court should make some other order as to costs in the circumstances of this case.

52    In Cheedy, at [12], the Full Court referred to Murray and noted that in proceedings which are not “proceedings” under the NTA but nevertheless concern matters arising under the NTA and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply.

53    In relation to Murray, the Full Court in Cheedy observed as follows at [13]:

Murray concerned an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to judicially review a decision of the Native Title Registrar to register an Indigenous Land Use Agreement (ILUA). At first instance, it was held that s 85A did not apply directly to the exercise of the costs discretion, because the proceeding was not one which formally arose under the NT Act. However, because the application involved a consideration of the meaning of important provisions of the NT Act concerning the entering into and registration of ILUAs, the Court said it should take into account the legislative intention of the NT Act in relation to matters which raise for consideration its correct interpretation, and where it is appropriate the Court should ‘follow the spirit’ of s 85A(1). Although the application at first instance failed, s 85A was relevant in departing from the ordinary rule that costs follow the event and that there should be no order as to costs. On appeal, where the significance of s 85A became less important as the appeal was without merit, an order for costs was made (at [28]): See also The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] per O’Loughlin J.

54    In Murray, the Full Court, at [27], recited what the primary judge had said when assessing that a costs order should not be made, having regard to s 85A of the NTA. The primary judge had stated as follows:

Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate ‘to follow the spirit of subs [85A(1)] of the Act’; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O’Loughlin J.

55    The Full Court said, at [28], that the approach adopted by the primary judge, was “entirely appropriate in the circumstances of a first instance proceeding”.

56    If one goes to the authority cited by the primary judge – The Ngalakan People v Northern Territory of Australia [2003] FCA 23 – O’Loughlin J at [16], having found that the claimants had proved native title over the area claimed near Roper River, but had failed, at the insistence of the respondent, to prove native title to certain roads, simply determined that, having regard to “the spirit” of s 85(1) (sic, s 85A(1)), he should not make a costs order. In the circumstances of the case before O’Loughlin J, the proceeding was plainly a “proceeding” of the type to which s 85A applied and it was within the exclusive jurisdiction of the Court. It was a claimant application for a determination of native title resisted by a respondent. It appears to me that all that O’Loughlin J intended when he referred to the “spirit” of s 85A was to indicate that the case before his Honour was one where the primary rule established by s 85A(1) – that there should be no order for costs – should apply, and nothing more.

57    The case of Doepel has also been referred to above, as one where s 85A did not apply to a non-NTA “proceeding”. In Cheedy, at [14], the Full Court observed as follows:

Similarly, in Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 the Court considered an application under the ADJR Act to review a decision of the Native Title Registrar made under s 190A of the NT Act to place an application for a determination of native title on the Register of Native Title Claims. The case did not involve a ‘proceeding’ to which s 85A directly applied. Having regard to the significance of the issues, and the reasonableness of the conduct, it was ordered that the ordinary rule as to costs apply, and the applicant pay the costs of the application. It was apparent that s 85A was relevant to the costs discretion (at [17]):

It would clearly be remiss to adopt a rule that, where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the ‘spirit’ of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Act, and involved consideration of the particular sections directing how that function was to be conducted. I have therefore included such consideration in the exercise of my discretion.

58    What cases like Murray and Doepel emphasise is that there may be cases where key questions have generally related to native title, and in the judicial exercise of the Court’s s 43 discretion the Court concludes that no costs or limited costs should be ordered having regard to all relevant circumstances.

59    In this case, Mr Corunna submits that having regard to the nature of the case put, the result, and the character of himself as the applicant, no order as to costs should be made. He draws attention to the following factors:

    He is self-represented.

    He is an aged pensioner who has been involved in native title litigation for 15 years but could not afford legal representation.

    He was seeking to clarify a point of law in relation to the status of his claim group where an unregistered claimant has nonetheless demonstrated a prima facie case.

    While the Court dismissed his case summarily it made no findings on the legal controversy that he wanted to have clarified.

    There remains a controversy regarding the Kemp v Native Title Registrar (2006) 153 FCR 38; [2006] FCA 939 and QGC Pty Ltd v Bygrave (2011) 199 FCR 94; [2011] FCA 1457 decisions (referred to in Corunna at [67]).

    There has been uncertainty as to who is required to authorise an ILUA under the NTA. In that regard the Explanatory Memorandum, Native Title Amendment Bill 2012 (which has not passed through Parliament) states as follows at [111]:

The amendments address current uncertainty in the law about who may authorise an ILUA. In QGC v Bygrave [2011] FCA 1457, Reeves J found that if there is more than one native title group for an ILUA area, where the ILUA area overlaps the area of a registered native title claim, the only people who are entitled to authorise the ILUA are the native title claim group for the registered claim. In Kemp v Native Title Registrar [2006] FCA 939, Branson  J held that where the native title parties comprised more than one distinct group, all persons would have to authorise the ILUA, and would have to do so separately, provided their assertion of native title was more than ‘merely colourable’.

    In summary, he wanted to clarify a legal uncertainty which was in the public interest to resolve but due to fundamental flaws in his application he was unable to arrive at that stage of the proceedings.

    The controversy remains and if he, or others, choose to object to the National Native Title Tribunal’s registration decision to register the proposed ILUAs in due course, it will remain.

    He had a reasonable concern about the proposed permanent destruction of his rights.

    There was a disparity in resources between himself and those of SWALSC.

60    It is noted that in these submissions Mr Corunna portrays himself to some extent as representing the “public interest”. In Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, the High Court of Australia addressed the question of the exercise of the costs discretion in the context of “public interest litigation”.

61    While McHugh J, with whom Brennan CJ agreed, considered that a plaintiff’s motive in commencing litigation in the public interest rather than self-interest was irrelevant to the exercise of the costs discretion, a majority of judges (Gaudron and Gummow JJ in a joint judgment, and Kirby J separately) considered that having regard to the primary source of the costs power in that case – the Land and Environment Court Act 1979 (NSW) – and the way that Act operated, it could not be shown that the primary judge’s decision that there be no order as to costs, taking into account amongst other things, the asserted intention of the plaintiff in commencing that proceeding, had miscarried ([144], [497]).

62    In this case it is less easy to see the “public interest” motivation of Mr Corunna’s proceeding, save that he claimed interests under the NTA, which Act has the general object of seeking to protect native title. No doubt, as he asserts, he intended the proceeding to be for the benefit of the members of his unregistered claim group. However, as pointed out in the primary judgment, the proceeding was not brought as a representative action. Mr Corunna brought the proceeding in his own name and nobody else’s. He was not authorised by any of the named applicants in his unregistered proceeding to bring the proceeding.

63    Further, having regard to the other native title claim group interests that SWALSC represents, who have an interest in seeing the relevant ILUAs being registered under the NTA, it would appear that there is a contest as to who represents the relevant indigenous “public interest” in this case. At best, there may be said to be competing interests.

64    In the result, I am not persuaded that this proceeding can properly be characterised as one in which a “public interest” element should guide the exercise of the costs discretion.

65    In the end, whilst the Court fully appreciates that Mr Corunna wanted to clarify what he considered to be an uncertainty as to his right, as a member of an unregistered native title claim group, to separately authorise the ILUAs in question, there is no doubt, in my view, that his originating application to the Court was misconceived. There may be issues to be raised later in the formal registration process under the NTA, but his proceeding raising those prospective issues was always going to be premature. The right to object later in the registration process under the NTA must have been obvious to Mr Corunna. Yet he commenced this speculative proceeding. By bringing the proceeding at what was clearly an advanced stage of the ILUA registration process, in advance of the statutory objection process, Mr Corunna was bound to cause both the State and SWALSC to mount a substantial response to his application.

66    In all the circumstances, there is, in my judgment, no reasonable basis for the Court to exercise its discretion as to the award of costs so as to deprive SWALSC of its entitlement to the usual order in such circumstances. Mr Corunna’s original application, unlike Doepel, has not particularly helped to clarify the law. Nor has it failed on some technicality. In the result, Mr Corunna has exposed himself to the hazards of litigation in that, by bringing an application which has failed, he is liable to meet the costs of the party who has successfully resisted his application.

67    In these circumstances, SWALSC is entitled to an order that Mr Corunna pay its costs of the summary judgment application, to be taxed if not otherwise agreed.

conclusion and order

68    The Court orders, further to the orders made on 20 May 2015, that:

(1)    The applicant pay the costs of the first respondent, to be taxed if not otherwise agreed.

Associate:

Dated:    24 June 2015