FEDERAL COURT OF AUSTRALIA

Balanggarra Aboriginal Corporation v State of Western Australia [2018] FCA 1538

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs of the proceeding, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This judgment concerns the question whether the State of Western Australia should pay the applicant’s costs of the proceeding following the applicant’s discontinuance of the proceeding. The question arises in the following circumstances.

2    The applicant, by virtue of a determination made under the Native Title Act 1993 (Cth) (NTA), holds exclusive native title rights on trust for members of the Balanggarra community over an area of land and waters in the Kimberley region of Western Australia (the exclusive rights area). See Cheinmora v State of Western Australia (No 2) [2013] FCA 768; Cheinmora v State of Western Australia (No 3) [2013] FCA 766.

3    It is also registered by the Clean Energy Regulator as the project proponent of the Balanggarra 1 Fire Project (Traditional Fire Project), an emissions avoidance offsets project within the meaning of s 53 of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth).

4    The Traditional Fire Project involves burning carried out by members of the Balanggarra community for the purposes of rejuvenating the land, curbing the incidence of wildfires and protecting sites of spiritual significance. The burning is carried out in the exclusive rights area during particular seasons known to the Balanggarra community as Kolorrirru (when the rain eases and the south easterly winds start) and Yirrma (the early to middle part of the dry season that broadly corresponds to the months of May to August).

5    Prior to the commencement of this proceeding, the State had asserted that the applicant could not lawfully carry out the Traditional Fire Project without first obtaining the permission of the Minister under the Land Administration Act 1997 (WA) (LAA) and the Land Administration (Land Management) Regulations 2006 (WA) (LM Regulations) failing which it was liable to be prosecuted.

6    The applicant disputed that proposition and eventually, following a meeting with the Hon Rita Saffioti MLA, State Minister for Transport; Planning; Lands, filed an originating application seeking declarations to establish that the applicant and members of the Balanggarra community could carry out the Traditional Fire Project over the exclusive rights area without such permission, and an injunction restraining the State from bringing any actions under s 267(2) of the LAA or reg 14(1) or reg 17 of the LM Regulations. The originating application was accompanied by a statement of claim.

7    Soon after the proceeding was commenced, the State appeared to abandon its earlier position. It said, however, that, on the basis of the matters pleaded by the applicant, there was in reality no dispute between the parties, and that the applicant and members of the Balanggarra community were not liable to prosecution under the LAA or the LM Regulations.

8    In light of the State’s stated position, on 27 March 2018, the applicant obtained leave from the Court to discontinue the proceeding, subject to its right to file any application for costs against the State by 4 May 2018.

9    The applicant has duly applied for costs under R 26.12 of the Federal Court Rules 2011 (Cth) and submits that it should be awarded the costs of the proceeding because:

(1)    the proceeding was precipitated by the State’s insistence that the carrying out of the Traditional Fire Project was unlawful without the permission of the Minister under the LAA and LM Regulations;

(2)    the State abandoned that position after service of the originating application, thereby effectively surrendering;

(3)    further, the State’s position before litigation was unreasonable; and

(4)    in any event, the applicant would almost certainly have succeeded in obtaining declaratory relief.

10    The State, in summary, submits that no costs order should be made because:

(1)    even if it was to be accepted that the applicant may have succeeded in obtaining some form of declaratory relief, it cannot be said with any certainty that it would have been wholly successful in obtaining the declaratory and injunctive relief which was sought; and

(2)    the applicant’s commencement of this proceeding was not, in the particular circumstances of this matter, reasonable.

11    As a result of the positions taken by the parties, questions of fact, as well as law, and the exercise of the discretion concerning the payment of costs following the discontinuance of the proceeding by the applicant, arise for consideration.

Competing Factual sequences

Applicant’s contentions

12    The applicant contends that an overview of the correspondence and interactions between the parties demonstrates that the State effectively surrendered after receiving the originating application and statement of claim, and also demonstrates that the State’s position before the litigation commenced was unreasonable.

13    The applicant contends for the following sequence of facts.

14    Before the litigation had commenced, State officials had repeatedly insisted that the applicant and members of the Balanggarra community could not legally carry out the Traditional Fire Project unless the applicant first obtained permission under the LAA and the LM Regulations. On 28 January 2015, for example, the Director General of the Department of Premier and Cabinet (DPC) relevantly wrote to the Chief Executive Officer of the Kimberley Land Council (KLC) (which acted on the applicant’s behalf) in these terms:

To ensure compliance with existing Western Australian legislation, a person or group conducting a savanna burning project on Crown land must obtain other relevant regulatory approvals, in addition to a permit to burn under the Bush Fires Act 1954. For example, approvals under section 267(2)(c) of the Land Administration Act 1997 (LA Act) and/or regulations 14 and 17 of the Land Administration (Land Management) Regulations 2006 (LA Regulations) are ordinarily required for carbon savanna burning activities on Unallocated Crown Land (UCL), Unmanaged Reserves (UMR) or Aboriginal Lands Trust (ALT) Lands.

Accordingly, it is necessary for your organisation to obtain approval from the Department of Lands for savanna burning activities undertaken on Crown land. When seeking this approval, please provide a short description of the proposed activities and relevant supporting documents, such as an annual burning plan and operational plan, and all relevant insurance policies and schedules.

15    The KLC responded on 19 February 2015. It pointed to a series of risk minimisation measures that it had taken with regard to burning (including conducting fire planning meetings with stakeholders such as the Department of Fire and Emergency Services, the Department of Parks and Wildlife and pastoralists, and developing an annual fire plan that was circulated to stakeholders before the fire season) before querying why additional authorisations would be required under the LAA and the LM Regulations given that permits had been issued under the Bush Fires Act 1954 (WA) (BFA).

16    Later correspondence underscored the State’s insistence that a permit for burning under the BFA would not be permission under the LAA and the LM Regulations (see letter from Mr Peter Conran of the DPC to Mr Nolan Hunter of the KLC dated 16 March 2015; annexure JMT-4 to the affidavit of Ms Justine Mary Toohey, p 67) and that the permission had to take the form of a deed of licence between the State and the applicant. Initially, however, the State advised the KLC and groups undertaking carbon savanna burning to seek approval from the Department of Lands by filling in a form entitled Application for Licence to Access Crown Land (General) (see letter from Mr Conran of the DPC to Mr Hunter of the KLC dated 16 March 2015; annexure JMT-4 to Ms Toohey’s affidavit, p 67). A letter to the chair of the applicant dated 19 November 2015, for example, stated:

The State requires that proponents of savanna burning carbon farming initiatives under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (CFI) taking place on Crown Land, hold relevant authorisations under the Land Administration Act 1997.

DPC confirmed that the Department of Lands would be in touch with you to provide a section 91 licence for your consideration. A draft section 91 licence is now enclosed.

17    On 6 May 2016, moreover, the same author wrote to the directors of the applicant and relevantly stated:

I refer to previous correspondence sent to Balanggarra Aboriginal Corporation (BAC) dated 19 November 2015 and subsequent email correspondence dated 16 February 2016 regarding the requirements for a Licence to facilitate relevant authorisations under the Western Australian Land Administration Act 1997 to undertake a carbon savanna burning project under the Commonwealth Carbon Credits (Carbon Farming Initiative) Act 2011.

The email of 16 February provided a final execution copy version of the section 91 Land Administration Act 1997 Licence that would facilitate legal access to the Crown lands within the Clean Energy Regulator approved project area.

Our records indicate, to date, we are yet to receive an executed copy of the Deed of Licence from BAC.

Without a fully executed Deed of Licence being in place, BAC does not have the required Western Australian statutory authority to undertake Savanna Burning activities on any Crown lands. Please execute and return the required Licence urgently to safeguard the ongoing operation of your carbon savanna burning activities.

18    On 14 October 2016, the KLC, acting for the applicant, informed the State of its view that it did not require the Minister’s permission under s 267(2)(c) of the LAA or the LM Regulations to carry out the Traditional Fire Project. The letter claimed that such a requirement would be contrary to the Racial Discrimination Act 1975 (Cth) (RDA) and s 211 of the NTA. It also claimed that even if permission was required, it would have a reasonable excuse under the LAA and reg 14 and reg 17 of the LM Regulations by virtue of obtaining a permit under the BFA. The letter asked the State whether it agreed that the Minister’s consent was not required and added that Balanggarra native title holders had engaged in traditional fire management since time immemorial.

19    On 23 November 2016, Ms Jacqueline Brienne, a senior solicitor at the Department of Lands, replied to that letter. In summary, she stated that:

    under the native title determinations, the native title rights and interests had to be exercised “for personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes”;

    in the State’s view, burning under an emissions fund reductions project was not for personal, domestic and communal needs;

    similarly, in the State’s view, s 211 of the NTA did not apply because burning under an emissions fund reductions project was not for personal, domestic or non-commercial communal needs;

    the RDA did not apply because the requirements in s 267 of the LAA and the LM Regulations applied to any person on relevant Crown land who undertook the activities prohibited in those provisions without the permission of the Minister for Lands or reasonable excuse; and

    a permit under s 18 of the BFA only conferred authority for the purpose of that Act; it did not confer permission, reasonable excuse or authority for the purposes of s 267 of the LAA or the LM Regulations.

20    Ms Brienne reiterated the position that a licence under the LAA was required. She observed, however, that the licence did not prejudice the parties’ positions but had been drafted to acknowledge that they had different views.

21    On 29 May 2017, the Acting Chief Executive Officer of the KLC, Mr Tyronne Garstone, attended a meeting with the State Treasurer and Minister for Finance; Energy; and Aboriginal Affairs, the Hon Ben Wyatt MLA and Minister Saffioti.

22    During that meeting, Mr Garstone provided a briefing note to Minister Saffioti that, among other things, referred to the previous government’s position on the need for a licence; explained the KLC’s objection to that requirement; and stated that, on instructions from native title holders affected by the issue, the KLC was poised to commence proceedings against the Minister in the Federal Court.

23    As foreshadowed in the briefing note, the applicant filed the originating application and statement of claim on 30 May 2017.

24    After service of the originating application and the statement of claim, however, the State’s position changed remarkably. It ceased to assert that the Traditional Fire Project would not be an exercise of the Balanggarra community’s exclusive native title rights. It ceased to assert that a deed was required to safeguard burning operations on Crown land and to avoid the prohibitions in s 267 of the LAA and reg 14 and reg 17 of the LM Regulations. Instead, the Minister for Lands confirmed, by letter dated 7 December 2017 which had followed an earlier letter from the State Solicitor’s Office on 2 August 2017 (that letter was originally without prejudice but privilege was waived and it was attached to the Minister’s letter of 7 December 2017), among other things, that:

    notwithstanding what might have appeared in previous correspondence from Departmental officers, the State made no allegation that the applicant or any member of the Balanggarra community was or might be in breach of s 267 of the LAA or reg 14 or reg 17 of the LM Regulations as a result of the Traditional Fire Project;

    on the basis of the facts alleged in the originating application, neither s 267 nor reg 14 or reg 17 of the LM Regulations would apply to burning undertaken by the applicant or any Balanggarra person on Ooombulgurri Reserve;

    as a matter of construction, s 267 did not render unlawful the exercise or enjoyment of native title rights and interests in the absence of relevant ministerial permission or authority. For that reason, no issue of invalidity arose under the NTA or the RDA;

    burning undertaken pursuant to a permit under the BFA would appear to provide a relevant authority for the purposes of the LM Regulations, and thus no offence under reg 14 could arise;

    notwithstanding previous correspondence, the State did not allege that the Traditional Fire Project was an undertaking for a “fee” or “reward” contrary to reg 17 of the LM Regulations; and

    in circumstances in which a permit was obtained under the BFA in relation to the Traditional Fire Project, there was no intention to commence a prosecution pursuant to s 267 or reg 14 or reg 17 of the LM Regulations.

The State’s contentions

25    The State, however, accounts for the factual sequence in a different way. As it concerns the applicant, the State submits that the evidence is to the following effect.

26    On 19 November 2015, the State (via the then Department of Lands) wrote to the applicant and advised that the State required proponents of savanna burning activity on Crown land to “hold relevant authorisations under the Land Administration Act 1997”. That correspondence included a proposed licence for the applicant’s consideration and requested “if the licence is acceptable to you, can you advise the writer” (licence).

27    On 16 February 2016, the State wrote to the applicant providing a further copy of the licence.

28    On 6 May 2016 (some six and three months after the letters of 19 November 2015 and 16 February 2016 had been provided), the State wrote to the applicant noting: an executed licence had not been received; requesting the return of that executed licence “to safeguard the ongoing operation of your carbon savanna burning activities”; and inviting the applicant to confer with the relevant Department officer “if BAC [sought] to discuss this statutory authority requirement further or if you have any questions ...”.

29    On 14 October 2016 (some 11 and five months after the letters of 19 November 2015 and 6 May 2016 had been provided), the Principal Legal Officer of the KLC (Mr Kevin Murphy) wrote to the State on behalf of the applicant advising that the applicant considered it was not required to obtain any approval pursuant to s 267(2)(c) of the LAA or the LM Regulations in order to undertake the relevant savanna burning activities. By that correspondence, the applicant requested the State advise whether it agreed with that position.

30    On 23 November 2016, the State responded to Mr Murphy’s correspondence confirming, in summary and inter alia, that the State did not agree with the matters stated in Mr Murphy’s correspondence and noted that the licence “is drafted to reflect that the parties acknowledge that they have different views and nothing in the licence prejudices their positions”.

31    No response was provided to that correspondence.

32    On 29 May 2017, the Minister for Lands (amongst others) met with representatives of the KLC. The “purpose of the meeting was to brief members of the recently elected Western Australian Government on issues of relevance to their portfolios and of importance to native title holders ...”. That included the issue of savanna burning and the KLC advised “the KLC has invested significant resources in mounting a challenge and is currently poised to commence proceedings against the Minister …”.

33    On 30 May 2017 (one day after the meeting with the Minister), the applicant commenced this proceeding.

34    On 2 August 2017, the State, through its legal representatives, wrote to the Principal Legal Officer of the KLC advising, on instruction, various matters relevant to the construction of specified provisions of the LAA and the LM Regulations. By that correspondence the State invited the applicant to consider whether there was need or utility in the matter proceeding.

35    On 29 September 2017, the applicant, through its legal representatives, invited the State to respond to a lengthy series of 23 statements of fact and law (which effectively repeated the essential case in the statement of claim) and advised that in the absence of a reply to those matters, on an open basis, the applicant considered there was a justiciable controversy and requested the State to formally plead its case.

36    On 7 December 2017, the Minister for Lands advised the applicant, amongst other things, that in circumstances where the applicant had obtained, and intended to obtain in the future, a bush fire permit there was no intention to commence any prosecution against the applicant in relation to activities undertaken pursuant to or under the relevant savanna burning activity. In those circumstances, the Minister further advised, it was unnecessary to respond to the 23 statements of fact and law as Mr Murphy had requested. The Minister repeated the observation which had been made on 2 August 2017 that the applicant may wish to consider whether there was need or utility in the matter proceeding.

37    On 27 March 2018, the applicant advised the Court that, subject to the question of costs, the applicant sought to discontinue the proceeding.

Parties’ submissions

Applicant’s submissions

38    The applicant submits that, on its overview, the State effectively surrendered or capitulated. Its volte-face regarding the need for permission from the Minister cannot be characterised in any other way. In accordance with decisions such as ONE.TEL Ltd and Others v Commissioner of Taxation (2000) 101 FCR 548 at 553; [2000] FCA 270, that capitulation should result in the State paying the applicant’s costs.

39    In addition, the applicant submits, the State’s volte-face highlights how unreasonable its previous position was. The course of correspondence and the briefing note provided to the Minister by Mr Garstone make it plain that the State’s insistence on permission being required under the LAA and LM Regulations precipitated the applicant’s decision to commence the litigation. Yet when confronted with the originating application, the State accepted that such permission was not necessary. Indeed, the Minister for Lands claimed that there was “no dispute” between the parties as to “the ultimate relief sought”; namely, confirmation as to whether the applicant would be liable to prosecution under s 267 of the LAA and reg 14 and reg 17 of the LM Regulations.

40    The applicant submits the situation is analogous to that in R v Gold Coast City Council; Ex parte Raysun Pty Ltd (1971) 26 LGRA 237; [1971] QWN 13. In that case, the prosecutor had brought an application for mandamus against the council for its failure to consider an application for road and drainage plans. The Full Court of the Supreme Court of Queensland awarded costs up to the date the council notified the prosecutor that it would agree to the orders that had been sought. Justice Matthews, with whom Hanger SPJ and Skerman J agreed, said, at 29-30:

In my view the prosecutor had reasonable ground for complaint upon the attitude taken by the respondent Council in its failure to consider the application of the prosecutor for approval or the road and drainage plans…and an arguable case to support the issue of writs of mandamus up to that point when the respondent Council by its servant did consider such road and drainage plans…

41    Similarly, in this case, the applicant says it had reasonable ground for complaint upon the position of the State, which had been articulated by officials including the Director General of the DPC and a senior solicitor of the Department of Lands, but which was abandoned after the litigation commenced.

42    In any event, the applicant submits it is apparent that, had the matter gone to trial, the applicant would almost certainly have succeeded. No “hypothetical trial” is required to demonstrate the point; the Court can simply consider the matters pleaded about the Reserve, the terms of the relevant legislation and the State’s correspondence. It is well established that if a proceeding is discontinued or otherwise does not proceed to a full trial, in determining costs courts will not try a hypothetical action between the parties, particularly where a trial would involve complex factual matters where credit could be an issue: see Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (McHugh J); Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7].

43    The applicant observes that it alleged that the bulk of lands and waters within the exclusive rights area fell within the Reserve. It alleged, as a matter of construction, s 267 did not impose restrictions on carrying out the Traditional Fire Project within the Reserve. That was because the Reserve did not fall within the definition of “Crown land” under the LAA: the Aboriginal Lands Trust held the land comprising the Reserve in fee simple.

44    Further, the applicant alleged that reg 14 and reg 17 of the LM Regulations did not impose restrictions on carrying out the Traditional Fire Project because the LM Regulations applied to only three categories of land, namely, unallocated Crown land; unmanaged reserves; and Schedule 1 reserves. The Reserve did not fall within any of those categories.

45    The applicant notes that the State has not disputed any of these allegations; rather, it has stated in correspondence that, on the basis of the facts alleged in the originating application, neither s 267, nor reg 14 or reg 17 of the LM Regulations would apply to burning undertaken by the applicant or any Balanggarra person on the Reserve. That statement constitutes an acceptance of the applicant’s case.

46    Yet even if the State’s correspondence does not constitute such an acceptance, the applicant submits the Court can still be confident that the applicant almost certainly would have succeeded. The vesting of the Reserve in the Aboriginal Lands Trust on 3 August 1973 was effected by an order made under s 33 of the Land Act 1933 (WA). The order was published in the Government Gazette and vested the land in fee simple. The repeal of the Land Act 1933 (WA) did not terminate the order; instead, the transitional provisions of the LAA ensured that it was treated as a management order under that Act. All this can be established by considering the order and the relevant legislation, without the need to descend into complex matters of evidence.

47    Accordingly, the applicant submits there would seem little doubt that the applicant would almost certainly have succeeded in showing that the Reserve was not Crown land or land to which reg 14 or reg 17 applied. That affords another basis on which costs should be awarded against the State.

48    As to the State’s submissions that even if the applicant might have obtained some relief, it is not certain that it would have been wholly successful in obtaining all the relief that it sought; and that its commencement of the proceeding was unreasonable, the applicant rejects each proposition.

49    As to the first, the applicant says the State makes no attempt to answer the point advanced by the applicant in its submissions: as a matter of construction, s 267 of the LAA and reg 14(1) and reg 17 of the LM Regulations would not have applied to carrying out the Traditional Fire Project within the Reserve. The Court need not engage in any complex or novel inquiry in order to accept that point.

50    In any event, the applicant says the State is wrong to claim that the applicant could not have succeeded without obtaining all the relief that it sought. The applicant sought declarations expressed in the alternative together with an injunction. It did so, moreover, in order to establish that the applicant and members of the Balanggarra community would not be liable for breaching s 267(2) of the LAA or reg 14(1) and reg 17 of the LM Regulations in carrying out the Traditional Fire Project. It follows that the applicant would not have had to show that it was entitled to each of the nine alternative declarations it claimed, as well as the injunction, in order to have succeeded. It merely would have needed to show that it was entitled to so much of the relief as would have achieved its purpose. The State is mistaken to suggest otherwise.

51    As to the second submission, the applicant submits there was nothing unreasonable in the applicant commencing the litigation. The State’s submissions to the contrary rest on the claim that there was “no urgency or immediacy” that compelled the applicant to commence the proceeding when it did. But that ignores the effect of s 267(2) of the LAA and reg 14(1) and reg 17 of the LM Regulations. Section 267(2) makes it an offence, punishable by a fine of up to $10,000, to do any of the things in that subsection without the permission of the Minister or reasonable excuse. A prosecution for an offence under s 267(2), moreover, can be commenced within 10 years after the date on which the offence is alleged to have been committed. That is a considerable limitation period. Furthermore, breaches of reg 14(1) and reg 17 are punishable by a fine of up to $1,000. The State’s submission also ignores the fact that the proceedings were commenced during Yirrma, being the traditional time when burning continues from the early dry season.

52    The State had made it clear, in correspondence from senior public officials and a senior solicitor, that s 267(2) of the LAA and reg 14(1) and reg 17 of the LM Regulations prohibited the applicant from carrying out the Traditional Fire Project without a deed of licence. The State’s considered view, in short, was that unless the State gave its permission, the applicant and members of the Balanggarra community would be committing offences by carrying out the project. Once that is understood, the applicant did not act unreasonably in commencing litigation to establish that no such offences had been or would be committed. See Croome and Another v State of Tasmania (1997) 191 CLR 119 at 138-139; [1997] HCA 5 (Gaudron, McHugh and Gummow JJ) (noting the interest of the plaintiff in establishing whether he was required to comply with the impugned State law). Particularly given the potential for a prosecution for an offence under s 267(2) of the LAA to be brought well after any alleged offence was committed, the fact that the State had not taken any step to commence a prosecution could hardly be regarded as much comfort.

53    The applicant contends that neither the change of government in March 2017 nor the meeting with Minister Saffioti on 29 May 2017 rendered the decision to commence the proceeding unreasonable. As the State concedes, as a general proposition a party does not have to give notice of its intention to commence a proceeding. The fact that the applicant chose to do so in the briefing with Minister Saffioti on 29 May 2017 is therefore not a cause for criticism. It is noteworthy that there is no evidence to suggest that the Minister asked Mr Garstone to postpone commencing the litigation until she had obtained any necessary advice. The applicant was entitled to seek to establish that members of the Balanggarra community would not be criminally liable for carrying out the Traditional Fire Project. It did not have to hope that the State would deign to reverse course.

The State’s submissions

54    The State notes that the applicant sought injunctive and declaratory relief. The nine declarations sought raised a number of significant and complex issues. They included declaratory relief which rested upon the establishment of an inconsistency between State and Commonwealth laws, and thus raised a question concerning s 109 of the Commonwealth Constitution.

55    The State refers to the applicant’s submission that this Court “can still be confident that the applicant almost certainly would have succeeded” in its claim, had it progressed to a final hearing. Having regard to the scope, complexity and novelty of the applicant’s originating application, the State says that submission cannot be accepted.

56    The State says that even if it were to be hypothetically accepted that relief of some kind may have flowed, it cannot be accepted or determined that all of the claimed relief would have succeeded.

57    Similarly, insofar as the applicant submits that the relevant savanna burning activity is carried out for particular purposes so much would be a question of fact to be determined in any final hearing. The State says it has understood that submission to be one which simply states the applicant’s case rather than one which asserts those matters as settled statements of fact.

58    The State submits that the factual sequence as set out above establishes that the State had attempted to engage with the applicant over a substantial period of time regarding the relevant savanna burning activity. It can be readily accepted that there was a difference of opinion as to the necessity or otherwise of obtaining relevant approvals pursuant to the LAA and the LM Regulations.

59    The State observes that the applicant’s pleaded case is that at the same time the State was making its concerns and views known, the applicant was undertaking the relevant savanna burning activity. That activity was undertaken for at least 18 months during which the applicant was directly aware of the State’s concerns regarding the need to obtain approvals pursuant to the LAA and the LM Regulations

60    The matter had lain dormant since November 2016 (when the State wrote to the Principal Legal Officer of the KLC) until 29 May 2017 (when the KLC met with the Minister for Lands).

61    The State also observes that, at no time did it take any step to commence a proceeding nor did it suggest to the applicant that such a step was proposed to be taken in the absence of the licence (or some other approval) being agreed.

62    So much is not to submit or suggest that a party must await the commencement (or proposed commencement) of a proceeding before seeking a declaration of its legal rights. However, in the circumstances set out above there was no urgency or immediacy which compelled the applicant to commence the proceeding when it did. That is relevant to consider, it is submitted, because there was a material change of fact which occurred prior to the commencement of this proceeding.

63    The State refers to the change of government in Western Australia and it submits that change occurred as a result of the State election in March 2017. It was a change which prompted the KLC to meet with the Minister for Lands for the purpose of identifying matters of concern to native title claimants and holders in the Kimberley, including savanna burning activities. That meeting occurred on 29 May 2017, being one day before this proceeding was commenced.

64    The State submits that it could not be expected that, having raised the issue of savanna burning on 29 May 2017, including by giving advice that the KLC was “poised” to commence a proceeding concerning that matter, the Minister would have been in a position to make any necessary enquiry or obtain any relevant advice in relation to that issue by 30 May 2017.

65    So much is not to submit that as a general proposition a party ought to give notice of its intention to commence a proceeding. However, the applicant cannot complain that it was unreasonable for the State’s position not to have been made known until after the proceeding had commenced. In the circumstances as they were, there was no opportunity for the Minister (or State) to have done anything else. The proceeding was commenced the day after the KLC had made the Minister aware of the issue.

66    The State contends that, having received the originating application and statement of claim, it moved promptly to consider that proceeding and advise the applicant that the State did not consider there to be judiciable controversy.

67    The State submits that the applicant’s response to that notice was to effectively reject that advice and request the State to informally answer the pleaded case. Again the State moved to address the applicant’s concerns as to the State’s position in relation to the need for a hearing of these matters. That advice resolved the need for the matter to be heard.

Consideration

68    Rule 26.12 of the Rules provides that, unless the Court orders otherwise, a party who files a notice of discontinuance is liable to pay the costs of each other party to the proceeding. The Rule creates a presumption that a respondent to a discontinued application is entitled to their costs.

69    The presumption, however, can be displaced if the discontinuing party shows the Court good reason not to award costs.

70    It is accepted that the Rule does not deny the power of the Court to award costs against a respondent under s 43 of the Federal Court of Australia Act 1976 (Cth) in appropriate circumstances.

71    The general proposition the authorities establish is that it may be appropriate to award costs against a respondent if its conduct in precipitating or defending litigation was not reasonable; or if a judge is confident that the applicant was almost certain to have succeeded if a matter had been tried. The cases show that if discontinuance results from a party effectively capitulating or surrendering in the face of a claim made against it, then costs will usually be awarded against that party. See ONE.TEL at 553; Chapman at [7]; Binetter v Commissioner of Taxation [2015] FCA 645.

72    The applicant’s claim for costs in this case relies on the capitulation or surrender type of case, although it also contends that it would have inevitably succeeded on one ground or another if the matter had gone to trial.

73    I accept the submission made on behalf of the applicant that, in order to obtain a cost order in this case, it does not need to demonstrate that it would have succeeded in obtaining each of the nine alternative declarations that it claimed, as well as the injunction, in order to have succeeded for the purposes of obtaining a costs order following discontinuance of the proceeding. I accept that all it needs to show, in the circumstances of this case, is that it was entitled to so much of the relief as would have achieved its evident purpose.

74    It seems to me that, in all of the circumstances, the substantive question was always whether, as a matter of construction, s 267 of the LAA and reg 14(1) and reg 17 of the LM Regulations applied to the carrying out of the Traditional Fire Project within the Reserve.

75    On that question, I have little hesitation in finding that the State capitulated on that point once the proceeding was commenced. I accept the primary submissions of the applicant in that regard, as set out above.

76    I also consider, as the applicant submits, there were strong grounds to believe that, if the matter had gone to trial, it would have been found that the bulk of the land in question, that fell within the Reserve, did not fall within the definition of “Crown land” under the LAA, and so was not subject to regulation under the LAA and the LM Regulations.

77    I generally accept the sequence of events contended for by the applicant. The correspondence discloses that at all material times until relatively soon after the commencement of this proceeding, the State was unwilling to concede the applicant’s asserted position. Ultimately, the commencement of this proceeding led to the breaking of the impasse.

78    I further consider that, as the applicant submits, there was nothing unreasonable in the applicant commencing the litigation. I accept the submission made by the applicant, concerning the State’s submission that there was no urgency or immediacy requiring the applicant to commence the proceedings when it did, that this ignores the effect of s 267(2) of the LAA and reg 14(1) and reg 17 of the LM Regulations. The former makes it an offence, punishable by a fine of up to $10,000, to do any of the things referred to in that subsection without the permission of the Minister or reasonable excuse. A prosecution for that offence can be commenced within 10 years after the date on which it is alleged to have been committed. Breaches of the regulations are punishable by a fine of up to $1,000. The applicant was entitled to clarify its legal entitlements in the manner contemplated by the proceeding.

79    It is also relevant, in my view, as the applicant submits, to note that the proceedings were commenced during Yirrma, the traditional time when burning continues from the early dry season.

80    When one considers all of the facts, properly construed, the State had made it clear in correspondence from senior public officials and a senior solicitor that the provision of the LAA and the LM Regulations prohibited the applicant from carrying out the Traditional Fire Project without a deed of licence.

81    The State’s position was that, unless it gave its permission, the applicant and the members of the Balanggarra community would be committing an offence by carrying out the project. In all of the circumstances, I do not consider that the applicant acted unreasonably in commencing the proceeding to establish that no such offences had been or would be committed by implementing its proposal.

82    I do not consider that it can properly be said that the change of government in March 2017 or the meeting with the Minister on 29 May 2017, rendered the decision to commence the proceeding unreasonable. Rather, it seems that the bringing of fresh ministerial eyes to a seemingly intractable dispute helped to resolve it.

83    It may be that the applicant had cause for some optimism that the State might consider the impasse afresh after the meeting with the Minister, but, in my view, it was indeed entitled to seek to establish that members of the Balanggarra community would not be criminally liable for carrying out the Traditional Fire Project following the meeting. As the applicant says, in its reply submissions, it did not have to hope that the State would deign to reverse course. It was entitled to get a clear legal ruling on the question.

Order

84    In the circumstances, I would make the following order:

(1)    The respondent pay the applicant’s costs of the proceeding, to be assessed if not agreed.

Associate:

Dated:    12 October 2018