FEDERAL COURT OF AUSTRALIA

Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058

ORDERS

THE COURT ORDERS THAT:

1.    There be no order for costs in each proceeding.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 5 December 2018, I dismissed two judicial review applications made in respect of the decision of the delegate of the Registrar to not register the Balanggarra #3 ILUA under the NTA. I then made orders enabling the parties to make submissions about the costs of the proceedings, which I further ordered would be determined on the papers following the lodgement of written submissions.

2    This judgment deals with the question of costs. In it I use the same abbreviated expressions that were used in the primary judgment. See Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955.

The objectors’ submissions

3    The objectors draw attention to s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) concerning the Court’s power or jurisdiction to award costs in proceedings, which is in the following terms:

(1)     The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded. This is subject to:

(a)     subsection (1A); and

(b)     section 570 of the Fair Work Act 2009; and

(c)     section 18 of the Public Interest Disclosure Act 2013.

(1A)     In a representative proceeding commenced under Part IVA or a proceeding of a representative character commenced under any other Act that authorises the commencement of a proceeding of that character, the Court or Judge may not award costs against a person on whose behalf the proceeding has been commenced (other than a party to the proceeding who is representing such a person) except as authorised by:

(a)     in the case of a representative proceeding commenced under Part IVA—section 33Q or 33R; or

(b)     in the case of a proceeding of a representative character commenced under another Act—any provision in that Act.

(2)     Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

(3)     Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following:

(a)     make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial;

(b)     make different awards of costs in relation to different parts of the proceeding;

(c)     order the parties to bear costs in specified proportions;

(d)     award a party costs in a specified sum;

(e)     award costs in favour of or against a party whether or not the party is successful in the proceeding;

(f)     order a party’s lawyer to bear costs personally;

(g)     order that costs awarded against a party are to be assessed on an indemnity basis or otherwise;

(h)     do any of the following in proceedings in relation to discovery:

(i)     order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery;

(ii)     order the party requesting discovery to give security for the payment of the cost of discovery;

(iii)     make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.

Note:    For further provision about the award of costs, see subsections 37N(4) and (5) and paragraphs 37P(6)(d) and (e).

4    By reference Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865, the objectors submit that costs should follow the event.

5    In this regard, they draw attention to my decision in Corunna v South West Aboriginal Land and Sea Council and Another (No 2) (2015) 235 FCR 53; [2015] FCA 630 where I dealt with the question whether costs should follow the event in a judicial review proceeding; having regard to the fact that s 85A of the NTA does not directly apply to the exercise of the costs jurisdiction in such a case. A further reference, to similar effect, was also made to my earlier decision in Stock and Others v Native Title Registrar and Others (No 2) (2014) 140 ALD 203; [2014] FCA 202.

6    The objectors note, at [6]-[9] of their written submissions, the circumstances in which they apply for costs, namely that the KLC agreed to cover the funding of their involvement in the proceedings and submit:

6.    The Objectors seek an order for payment by the State of the costs incurred by the Objectors in relation to the State's application, with any costs relating to work funded by the KLC to be reimbursed to it, the quantum of such costs to be taxed failing agreement by a date to be fixed not earlier than 31 January 2018.

7.    Notwithstanding that the KLC provided funding to the Objectors it is important to consider that the State's application was not made in relation to the NTA but the ADJR Act. The State's application fell outside of an application under s 61 and was an administrative review similar to proceedings under s 169 NTA [Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) (2011) 194 FCR 562 at [43]-[45]].

8.    These submissions outline the Objector's position on costs to be awarded in the proceeding. It is submitted that given both the KLC's and the State's responsibility for instituting such review proceedings that the Court should divide the costs between the two applicants. The Objectors submit costs should be divided 60/40 between the KLC and the State respectively giving weight and consideration to the KLC seeking two grounds of review, and the State seeking review on one ground in its application. The division of costs is even more important given that the KLC agreed to contribute to the Objector's legal costs and disbursements in accordance with the terms and conditions set out in the Deeds of Agreement. If the Court makes an order that entitles the Objectors to recover costs in whole or in part from another party in relation to the Services, Cross Country Native Title Services agrees to pay the amount of costs recovered from the State to KLC.

9.    It is submitted by the Objectors that the State must pay some proportion of the costs as a result of its application. The Objectors have been successful before the delegate of the Registrar and in the current judicial review proceedings in relation to their objections to the registration the ILUA. Defence of the claims has resulted in significant expenditure of resources and time of the Objectors.

7    At [10]-[16], the objectors make submissions as to why the ordinary rule as to costs should apply against the State in this case:

10.    The crux of the State's application was that there was no mandatory decision-making process that needed to be followed under the traditional laws and customs in question [Kimberley Land Council Aboriginal Corporation v Williams [2018] FCA 1955 [48], [53]]. The KLC submitted that the claim group properly met and determined that they did not have a traditional decision-making process for authorising ILUAs and thereby proceeded to determine by what method the question of authorisation should be determined [Williams [41]]. The Delegate applied an incorrect construction of s 251A(l)(a) NTA [Williams [39]]. As noted in the reasons for judgment, there is overlap between these three issues [Williams [40]]. The State followed the KLC's grounds and contended that the errors made by the Delegate meant that she erred in not registering the ILUA [Williams [54]].

11.    The focus of Barker J's decision was on the evidence regarding what transpired at the claim group meeting in which the decision to authorise the ILUA was purportedly made [Williams [55]-[103]]. His Honour considered that there was evidence before the Delegate that was capable of supporting the view that under Balanggarra law and custom some claimants may be members of a ‘pre-eminent’ group with familial traditional connections to a particular area holding a right to ‘speak for country’, and other claimants may ‘come behind’ and have other rights or interests [Williams [59]]. Yet this did not necessarily mean that the ILUA had to be approved by such a process of decision making [Williams [60]].

12.    Further, his Honour considered that the Delegate correctly found that the expression ‘things of that kind’ in s 251A(1)(a) and (b) focuses on the question whether there is a traditional process of decision-making that must be complied with in relation to authorising ‘things of that kind.’ The subject matter is important and the relevant ILUA specifically dealt with the surrender of native title [Williams [62]]. His Honour's decision was that the Delegate was correct when she considered that the claim group should have been asked to consider whether there was a traditional decision-making process for the authorisation of the ILUA to surrender native title [Williams [72], [74]]. Instead, the claim group were asked, and simply decided, whether one of four nominated options of decision-making should be adopted [Williams [62], [99], [100], [102].

13.    The State's Costs Submissions contend that its review application involved the construction of provisions of the Native Title Act, and in particular s 251A, and thus the ‘spirit’ of s 85A NTA. Such principles may apply to some, but not all, proceedings where the Court has been asked to consider certain provisions of the NTA pursuant to an application under the ADJR Act. 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: Murray v Registrar of National Native Title Tribunal [2003] FCAFC 220; (2003) 132 FCR 402 (Murray).

14.    The Court will contemplate the ‘spirit’ of s 85A in some circumstances where the case is close or difficult and involves no obvious element of fault on the part of the loser or when the proposition that costs automatically follow the event may work unfairness [Ruddock v Vadarlis at [13]].

15.    In relation to the practices and guidelines regarding costs which have developed in the administration of the discretion of courts of general jurisdiction Brennan J in Norbis v Norbis (1986) 161 CLR 515 at 537 observed:

It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise.

16.    In determining if costs follow the event consideration should also be given to the State's decision to bring their own application for judicial review. This resulted in the Objectors expending more time and resources than that which it would have if the State has chosen to make submissions in support of the application brought by the KLC. Therefore, the State must be required to bear the additional costs occasioned by their separate application. Furthermore, it is submitted that there was no question before the Court that was novel or had not already been considered by the Full Federal Court in relation to the meaning within s 251A(a) and (b) as they were before the amendments occasioned by McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade). McGlade [at [335], [340] and [426]] considered the provision in detail.

The KLC and claimant’s submissions

8    The KLC and the claimant also recognise the Court’s discretionary power to award costs under s 43 of the FCA Act. However, they draw attention to my decision in Stock at [11].

9    It is recognised by them that, while costs ordinarily follow the event, in special circumstances, including having regard to the “public character” of litigation, a different costs order might be appropriate. Reference in this regard is made to Oshlack v Richmond River Council (1998) 193 CLR 72 at [20] and [49] (Gaudron and Gummow JJ); [1998] HCA 11.

10    In short, the KLC and claimant submit there was a “novel question” of general importance and some difficulty involved in this case, which may lead to the Court declining to order costs against the unsuccessful party. In this regard they refer to Ruddock at [17] (Black CJ and French J).

11    The KLC and claimant also submit that while, as I found in Corunna, s 85A of the NTA does not directly apply to proceedings under the ADJR Act, the “spirit” of s 85A may be considered applicable in matters which raise issues of construction of the NTA. In this regard, they refer, amongst other decisions, to The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16]; The Lardil Peoples and Others v State of Queensland and Others (2001) 108 FCR 453 at [157]; [2001] FCA 414; Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 at [15]; O’Mara and Another v Minister for Lands and Others (2008) 167 FCR 145 at [27]-[37]; [2008] FCA 51; and Fesl and Others v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 at [19]; [2008] FCA 1479. See also Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 at [27] (“spirit” of s 85A limited to proceedings involving questions of construction of the NTA).

12    So far as the costs in the present proceedings are concerned, by [7]-[10] of their written submissions, the KLC and claimant submit that:

7.    The First to Fifth Respondents in proceeding WAD 178 of 2018 and the Fifth to Ninth Respondents in proceeding WAD 179 of 2018 (being the French/Williams families represented by Cross Country Native Title Services) (Respondents) have provided a written undertaking that they will not pursue the First Respondents for costs (see the affidavit of Claire Saffery affirmed on 12 December 2018).

8.     In the event that the Court is minded to exercise its discretion in relation to costs, the First Respondents submit that no order as to costs should be made in respect of the First Respondents, on the grounds that:

(a)     the application involved the first judicial consideration of a key aspect relating to the construction of s 251A of the NTA;

(b)     the application raised arguable grounds for the Court’s consideration. The NTA provisions relating to Indigenous Land Use Agreements (ILUAs) and to the authorisation of ILUAs is of great importance to the proper administration of the NTA;

(c)     the First Applicants were partially successful in their submissions with respect to the operation of s 251A of the NTA and the role of the Registrar of the National Native Title Tribunal;

(d)     the First Applicants did not pursue a personal interest in the application;

(e)     the ‘spirit’ of s 85A of the NTA is relevant to the exercise of the Court’s jurisdiction to award costs; and

(f)     the First Applicants’ conduct in litigation does not qualify as unreasonable.

9.     In any event, consistent with the overarching purpose of the civil practice and procedure provisions, as set out under ss 37M and 37N of the Federal Court Act, the First Applicant in proceeding WAD 178 of 2018 (being the Kimberley Land Council) funded the Respondents’ legal costs associated with the proceedings in order to facilitate the just resolution of a dispute regarding the construction of s 251A of the NTA. The absence of any personal liability accrued by the Respondents in relation to the costs associated with the proceedings supports the submission that no order as to costs should be made in respect of the First Respondents.

10.     Further, a contractual arrangement between the Kimberley Land Council and the Respondents’ legal advisors (Cross Country Native Title Services) requires repayment of costs to the Kimberley Land Council in circumstances where an order is made that entitles the Respondents to recover costs from another party (see affidavit of Erika Blades affirmed 12 December 2018). An order for costs made against the First Applicant would therefore result in the First Applicant making payment to itself following an assessment of costs.

The State and Minister’s submissions

13    The State and Minister similarly recognise the Court’s discretion to award costs under s 43 of the FCA Act is both absolute and unfettered, although it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation.

14    They recognise that ordinarily costs will follow the event.

15    In this case, however, the State and Minister submit the Court should have regard to the “spirit” of s 85A of the NTA in exercising the costs discretion.

16    In this regard, the State and Minister submit, in their written submissions at [9]-[23]:

9.    Section 85A of the Native Title Act provides that, unless a party has acted unreasonably, and unless the Court orders otherwise, each party to a proceeding is to bear his or her own costs.

10.    As stated, costs in this proceeding are governed by section 43 of the FCA Act. However, the authorities establish that the ‘spirit’ of section 85A of the Native Title Act is a factor to be taken into account in the exercise of the Court's discretion to order costs under section 43 in proceedings that involve the construction of provisions of the Native Title Act. [QGC Pty Ltd v Bygrave [2012] FCA 309 at [24] (Reeves J), citing Murray v Registrar of the Native Title Tribunal (2003) 132 FCR 402, Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) [2010] FCA 1154, Brownley v Western Australia (No 2) (1999) 95 FCR 172. Lardil Peoples v Queensland (2001) 108 FCR 453, Northern Territory of Australia v Doepel (No 2) [2004] FCA 46, O'Mara v Minister for Lands (2008) 167 FCR 145 and Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176.]

11.    In particular, there is authority that the Court should have regard to the ‘spirit’ of section 85A in matters that involve consideration of the functions undertaken by a Registrar under the Native Title Act [Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 at [17] (Mansfield J).]

Each party should bear its own costs of the proceedings

12.    The Second Applicants respectfully submit that there should be no order as to costs in these proceedings for three reasons.

13.    First, the Second Applicants' review application involved the construction of provisions of the Native Title Act, and in particular section 251A, and thus the ‘spirit’ of section 85A of the Native Title Act is to be taken into account in the exercise of the discretion to award costs.

14.    Second, it is submitted that the issues raised by the Second Applicants' review application were novel.

15.    The Second Applicants' grounds of review raised the proper construction of section 251A of the Native Title Act and, in particular, the expression ‘things of that kind’.

16.    Whilst the construction of section 251A has been the subject of judicial consideration, [See, eg QGC Pty Ltd v Bygrave (2011) 199 FCR 94] the proper interpretation of the phrase ‘things of that kind’ has not been specifically considered.

17.    The Court's consideration of section 251A and the phrase ‘things of that kind’ in the Reasons for Decision has clarified that:

17.1    for the purposes of section 251A(l)(a), the content of an agreement is relevant to determining whether or not there is a traditional decision­ making process that applies to the authorisation of that agreement; and

17.2    the question of whether or not there is a traditional decision-making process as described in section 251A(l)(a) in relation to the authorisation of a particular agreement is a question to be decided by the group of native title claimants themselves. It is not a question for the Registrar to decide upon registration of the agreement.

18.     Third, it is submitted that there was a public benefit to be derived from the consideration of the issues raised by the Second Applicants' grounds of review and, in particular, clarification of the proper construction of section 251A.

19.    In Northern Territory of Australia v Doepel (No 2), Mansfield J accepted that the public interest in the judicial resolution of issues raised by a review application may justify a Court's departure from the ordinary rule when exercising its discretion to award costs.

20.    In Doepel (No 2) Mansfield J ultimately concluded that the unsuccessful applicant should be ordered to pay the costs of the application as (1) the application did not simply involve the proper construction of certain provisions of the Native Title Act, but to a ‘significant degree’ turned upon its own particular facts and circumstances; and (2) the particular provisions of the Native Title Act considered did not give rise to commonly raised issues [Doepel (No 2) at [14], [18] (Mansfield J)].

21.    It is respectfully submitted that the present proceedings can be distinguished from Doepel (No 2) as:

21.1    the resolution of the Second Applicants' review application did not turn upon the particular facts and circumstances, but upon the proper construction of the relevant provisions of the Native Title Act; and

21.2    the provisions considered are commonly applied.

22.    Further, it was recognised by Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 that there is a ‘public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs’. [Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 at [10]. Murray J's approach to costs was upheld on appeal: Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402 at 410 [28] (Spender, Branson & North JJ)].

23.    In conclusion, in light of the public interest in the resolution of the novel issues raised by the Second Applicants' review application, and the relevance of section 85A of the Native Title Act, it is submitted that it is appropriate for the Court to depart from the ordinary rule and refrain from making an order as to costs.

Consideration

17    The parties have set out concisely both the principles relevant to the exercise of the costs discretion in this particular case, and the circumstances in relation to which they contend a costs order, of a particular kind, should be made, or not be made. In the result, I consider there should be no order for costs in each of the proceedings.

18    In short, this is a case where s 43 of the FCA Act confers on the Court a power to award costs, which power is to be exercised judicially.

19    Ordinarily, including in an ADJR Act review proceeding challenging the exercise of statutory power under the NTA, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party. I ultimately found as much in Corunna.

20    It is agreed all round in this case, by the parties, that s 85A of the NTA has no direct application to the exercise of the costs discretion here, because the ADJR Act proceedings are not proceedings that relevantly relate to native title.

21    The essence of the submissions made as to why there should be no order as to costs include: that the “spirit” of s 85A of the NTA should be regarded; that there is something in the nature of “public interest” litigation in these review proceedings, in the sense discussed in Oshlack (and referred to and discussed by me in Corunna); that the substantive issues concerning s 251A of the NTA and its application in relation to the authorisation of the Balanggarra #3 ILUA here were of some importance and complexity; and for all the foregoing reasons these proceedings should be seen very much as if they were proceedings under the NTA to which s 85A of the NTA would apply.

22    I have set out above the detailed submissions of the parties as to why a costs order should be made or should not be made. They are targeted submissions and I have appreciated the force of them.

23    I consider that whilst these ADJR Act proceedings are not directly affected by s 85A, the subject matter of the litigation was very closely related to the administration of the NTA, and indeed, arose in the course of the administration of the NTA.

24    The question of the registration of ILUAs, more generally, is a matter of considerable importance. The power to register an ILUA is exercised by the Registrar, or delegate, as it was here, under the NTA. The questions falling for considering, in that regard, directly arise under the NTA.

25    The particular question of authorisation involving s 251A of the NTA is also a matter of importance and some complexity. The facts of this case, in my view, demonstrate that that is so. The role of a local group, on the facts of this case, in the decision-making of the wider native title holding group is likely to be a not uncommon feature of decision-making. Also there is a question of what “things of this kind” are affected by traditional decision-making processes. And there is the question of who decides that question.

26    It is not surprising, although there may have been other reasons for this agreement, that the KLC agreed to fund, on terms, the participation of the objectors in these proceedings to deal with these significant questions.

27    The rulings I have made concerning those questions are calculated to assist in identifying procedures which ordinarily and prudently will need to be taken to ensure that the authorisation process is conducted in the manner specified by the NTA.

28    There is a considerable public interest in seeing such procedures established and complied with, because the process of making ILUAs, registering them and then seeing them properly implemented, can be both time consuming and costly.

29    To some extent, these considerations involve an appeal to the “spirit” of s 85A of the NTA, or the “public interest” nature of the litigation. More correctly, however, my decision, that there should be no order as to costs, simply involves a judicial exercise of the s 43 of the FCA Act costs power having regard to all relevant factors. Having regard to the subject matter of the litigation, to the issues of construction involved, and the factual circumstances in which the key questions have been raised, I find that there should be no order as to costs in each proceeding.

Order

30    The Court orders:

(1)    There be no order for costs in each proceeding.

Associate:

Dated:    18 December 2018