Federal Court of Australia

Gardiner v Taungurung Land and Waters Council (No 2) [2021] FCA 253

ORDERS

THE COURT ORDERS THAT:

1.    The decision of a delegate of the Registrar of the National Native Title Tribunal, dated 30 April 2020, to register the Taungurung Settlement Indigenous Land Use Agreement be set aside.

2.    The Registrar of the National Native Title Tribunal be directed to remove forthwith the details of the Taungurung Settlement Indigenous Land Use Agreement from the Register of Indigenous Land Use Agreements.

3.    The application for registration of the Taungurung Settlement Indigenous Land Use Agreement be remitted to the Registrar for consideration in accordance with the law.

4.    The first and second respondents pay the applicants’ costs of and incidental to the application, including the costs of and incidental to written submissions made pursuant to the Court’s orders made on 9 February 2021, all costs to be fixed by way of a lump sum.

5.    On or before 4pm on 2 April 2021 the parties are to file any agreed proposed orders as to the applicants’ lump sum costs.

6.    If no proposed orders are filed pursuant to order 5, the question of the appropriate amount for the applicants’ lump sum costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    On 9 February 2021, the Court published its reasons for the judgment on the applicants’ application for judicial review of a decision by a delegate of the Native Title Registrar to register the Taungurung Settlement Indigenous Land Use Agreement under s 24CK(1) of the Native Title Act 1993 (Cth). The Court upheld the judicial review application: see Gardiner v Taungurung Land and Waters Council [2021] FCA 80. Due to a contention put on behalf of the first respondent at trial (see [129]-[130] of Gardiner), the Court made orders for the filing of submissions on appropriate relief. The parties were also directed to make any submissions they wished to make about the costs of the proceeding.

2    The first respondent and the State were ordered to make their submissions first, as the contention opposing relief was their contention. As it turned out, neither respondent pressed any argument that the applicants were not entitled to the relief which would usually flow from the upholding of a judicial review application under the Administrative Decisions (Judicial Review) Act 1997 (Cth).

3    The first respondent’s initial objections centred on the terms of s 199C of the Native Title Act, which relevantly provides:

(1)    Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

…

(c)    in any case:

…

(iii)    the Federal Court, under subsection (2), orders the details to be removed.

Note:    If the details of an agreement are removed from the Register, the agreement will cease to have effect under this Act from the time the details are removed: see subsection 24EA(1) and paragraph 24EB(1)(b).

…

(2)    The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.

(3)    The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).

4    Although the Court is given jurisdiction under s 199C(2) to “order the Registrar to remove the details of the agreement from the Register” if the preconditions in s 199C are met, there was no objection to competency of the applicants’ AD(JR) Act application. In other words, it was never suggested by either respondent that the Court’s jurisdiction under the AD(JR) Act had been ousted or limited by the terms of s 199C of the Native Title Act. Section 199C is expressly concerned with acts of fraud, undue influence or duress in entering in to an ILUA. It is not concerned with judicial review.

5    In their submissions, the respondents accepted the Court had characterised the delegate’s errors as jurisdictional (see [319] of Gardiner). With varying degrees of detail in their respective submissions, neither respondent sought to contend the delegate’s errors did not affect the exercise of her jurisdiction, and her power to register the ILUA. Therefore they accepted the delegate’s decision should be set aside, the Taungurung ILUA should be removed from the ILUA Register, and the matter remitted to the Registrar for determination of the ILUA registration application according to law.

6    There was very little difference between the parties on the form of orders sought, and I have generally adopted the form of orders they have suggested.

A further matter

7    In its submissions at [8], the first respondent made a submission about the ILUA having effect between registration and the time it is set aside. It contended that:

[W]hile an order quashing the decision means that the registration would cease to be effective at law, that is not to say that the registration, while it lasted, was not a ‘thing in fact’ on which certain reliance could have been placed under ss 24EA and 24EB of the NT Act.

(Footnote omitted.)

8    The State made a less direct submission, but along similar lines at [4] of its written submissions. It is not appropriate for the Court to express any opinion about this contention. It has not been a matter in issue between the parties, nor the subject of full argument. While it can be accepted the first respondent has an interest in making that submission, this is not a matter for the Court to decide.

Costs

9    Somewhat surprisingly both respondents, having sought their costs if the judicial review application were dismissed, then referred in their subsequent written submissions to the “no costs” provision contained in s 85A of the Native Title Act.

10    The first respondent went further than the State and made a positive submission that given that a substantive issue raised by the application was the proper construction of s 24CK of the Native Title Act, s 85A could be invoked even though this was a judicial review proceeding. The first respondent relied on the decision in Burragubba v State of Queensland [2015] FCA 1163; 236 FCR 160 at [24]-[27].

11    Therefore, the first respondent’s primary submission was that there be no order as to costs of the judicial review application.

12    The State contended that s 85A had been relied on in judicial review proceedings to decline to order costs against an unsuccessful party: Murray v Registrar of Native Title Tribunal [2003] FCA 45 and in Kimberley Land Council Aboriginal Corporation v Williams (No 2) [2018] FCA 2058.

13    Ultimately however, the State’s primary position involved a concession it was appropriate that the usual order for costs be made.

14    I do not accept Burragubba goes as far as the proposition for which the first respondent contends, especially when [28]-[31] of that decision are read with what is said at [24]-[27]. Indeed, as the applicants submitted, the decision may tend in the opposite direction, as do the several decisions to which Edelman J refers at [26].

15    Murray and the Kimberly Land Council case were both circumstances where the Court declined to make wholesale adverse costs orders against unsuccessful applicants. The latter considered public interest principles as well.

16    The ironic, and somewhat unbecoming, fact in the present proceeding is that neither respondent sought to acknowledge the role s 85A might play, nor the principles to which they now refer, in their primary submissions and instead sought that the applicants pay the respondents’ costs if the applicants did not succeed.

17    Although in their submissions about s 85A neither respondent referred to them, the Full Court’s decisions in the Noongar/SouthWest settlement litigation are directly on point. While in an exercise of the Court’s discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) the decisions may not be binding, as Full Court decisions the approach taken to the exercise of the discretion as to costs in identical circumstances must be seriously considered.

18    In the first challenge, the Court’s jurisdiction arose under s 39B of the Judiciary Act 1903 (Cth), and the Full Court expressly rejected the application of s 85A: McGlade v Native Title Registrar (No 2) [2017] FCAFC 84 at [13]. The Court awarded the applicants their costs.

19    In the second judicial review challenge, like this proceeding brought under the AD(JR) Act, the Court ordered the unsuccessful applicants to pay the costs of the respondents: see McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329.

Conclusion on costs

20    The applicants having succeeded, the position adopted by the respondents on the judicial review application that costs should follow the event is one that should now be applied to them. It is the appropriate order given the nature of the proceeding, and the jurisdiction exercised by the Court. It is consistent with the approach taken by the Full Court in the McGlade litigation.

21    All parties proposed the applicants’ costs proceed to taxation if there was no agreement. I do not consider that is appropriate. The Court’s Practice Notes indicate the Court’s preference is to make lump sum costs orders: see GPN-COSTS at [4.1]. Lump sum costs are a more efficient and cost effective way of resolving the question of costs if there is no agreement between the parties. There will be orders accordingly.

Associate:

Dated:    19 March 2021

SCHEDULE OF PARTIES