Aoo Neer So? D1sTR iB u-ri9 IN_THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985 GENERAL DIVISION ) BETWEEN : THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY ' Applicant AND: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent THE CENTRAL LAND COUNCIL Third Respondent ROBERT BRUCE REYBURN Fourth Respondent and IN THE MATTER OF THE WARUMUNGU LAND CLAIM IN THE FEDERAL COURT OF AUSTRALIA ) NEW _ SOUTH WALES DISTRICT REGISTRY ) No. G336 of 1985 GENERAL DIVISION ) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE CENTRAL LAND COUNCIL Second Respondent AND_IN THE MATTER OF THE WARUMUNGU_ LAND CLAIM EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY MINUTE OF ORDER CORAM DATE: 16 September, 1986 Bowen, C.J., Woodward and Toohey JJ. - PLACE: Sydney THE COURT ORDERS THAT: 1. The application for an order for costs by the Central Land Council within 21 of judgment be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt in Order 36 of the Federal Court Rules. made days with - * IN THE FEDERAL COURT OF AUSTRALIA ) ' VICTORIA DISTRICT REGISTRY ) No. VG 237 of 1985 _ GENERAL DIVISTON ) BETWEEN : THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY Applicant AND: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent THE CENTRAL LAND COUNCIL Third Respondent ROBERT BRUCE REYBURN Fourth Respondent and IN THE MATTER OF THE WARUMUNGU LAND CLAIM IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G336 of 1985 GENERAL DIVISION ) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE CENTRAL LAND COUNCIL Second Respondent AND _ IN THE MATTER OF THE WARUMUNGU_ LAND CLAIM EX PARTE: ABORIGINAL SACRED SITES PROTECTION AUTHORITY Prosecutor CORAM: Bowen, C.J., Woodward and Toohey JJ. DATE: 16 September, 1986 REASONS FOR JUDGMENT Matters Nos. VG237 of 1985 and G336 of 1985 were both initiated by the Aboriginal Sacred Sites Protection Authority ("the Authority"). The first was an application under the Administrative Decisions (Judicial Review) Act 1977 and the other was a Claim for writs of prohibition and certiorari under s.39B of the Judiciary Act, 1903. The Attorney-General for the Northern Territory was joined as a respondent in both matters. The Central Land Council ("the Land Council") was third respondent in the claim under the Judicial Review Act and second respondent in the claim under s.39B of the Judiciary Act. It was joined by order of the Court to represent the interests of Aboriginal claimants before the Aboriginal Land Commissioner ("the Commissioner") in connection with certain land claims which were being heard when the question of the public interest immunity arose in relation to material it was sought to have produced to the Commissioner in the course of his enquiry. Both sets of proceedings sought review of the Commissioner's decision regarding pz.duction of this material. The Full Court which heard these two matters together made the following orders on 27 March 1986: 1. The application for judicial review be dismissed. Ze The order nisi for writs of prohibition and certiorari be discharged. 3. The parties have liberty to applv on the question of costs within 21 days. 4. In the absence of any application there be no order as to costs. In these two matters application was subsequently made by the Land Council for an order for costs and arrangements were made for this to be dealt with by those Judges constituting the Full Court by means of written submissions. Written submissions were received from the Land Council and from the Authority. Belatedly a submission was received from the Attorney-General. The Land Council submitted that the Court should apply the ordinary rule in litigation that a party which initiates legal proceedings and is unsuccessful should be liable for the legal costs of the other parties tao the proceedings. This rule has often been applied in actions reviewing decisions of the Aboriginal Land Commissioner. (See, for example, R. v. Toohey, Ex parte Attorney-General (N.T.) (1980) 145 C.L.R. 374; Re _ Kearney, Ex parte Northern Land Council (1983) 52 A.L.R. i; Attorney-General (N.T.) v. Kearney (1985) 61 A.L.R. 55). The Land Council submitted that the Court should make an order for costs against the Authority. It argued that if the Land Council were forced to pay its own legal costs the finances available for impoverished Aboriginal people in the Northern Territory would he diminished. The Authority submitted that the Court should decline to make any order for costs in these matters. Alternatively, it submitted that if the Courts were disposed to make an order for costs, no order should be made against the Authority. The Authority's principal argument was that it achieved its main objective in bringing the proceedings and was in reality "successful" in that the Judges comprising the Court, in the course of their individual reasons, by majority held that information obtained from Aborigines in confidence and supplied to the Authority attracted the doctrine of public interest immunity. The Commissioner, Maurice J., had ruled in relation to the material proposed to be produced that it did not attract public interest immunity. He went on to decide that, if this was not so, nevertheless in balancing that interest against the interest of the ascertainment of the true position by the Commissioner in relation to the land claim the balance came down in favour of disclosure. The Full Court unanimously held that the Commissioner had not erred in performing this balancing exercise and refused to interfere with his decision. The Authority argued that an important question of principle had been decided in its favour even though it did not succeed in overturning the Commissioner's manner of performing the balancing exercise. In future cases, the question of claims for public interest immunity could be raised in relation' to more appropriate documents than in the present matters. The Authority pointed out that in the proceedings before the Commissioner the Land Council supported the Authority's arguments concerning public interest immunity. It submitted that the Land Council's "about face" on the issue in the appeals before the Federal Court was relevant to the question of costs. The nature of the Land Council's submissions to this Court is described in the judgment of Toohey J., reported in 65 A.L.R. 247 at pp.264-265. The Attorney-General submitted that the Authority should pay his costs and that there should be no order for costs in favour of any other respondent. The Attorney drew attention to the conduct of the parties before the Commissioner, submitting that in seeking notices for the production of the material that led to the question whether public interest immunity existed, he had adopted the only course open to him in the circumstances. He referrred to the history of the claim before the Commissioner with a view to showing that the Land Council had been responsible for the considerable delay and that the way in which anthropological material was produced at the hearing of the land claim made it necessary for the Attorney to seek the production of material from the Authority. Of course, it 1s not the costs of appearing before the Commissioner with which we are concerned. No orders for costs are made in that forum. These matters were mentioned in the Attorney's submission, no doubt to show that there was nothing in his conduct of the case before the Commissioner that should prompt this Court, in dealing with the costs of the matters before it, to depart from the ordinary rule that the unsuccessful party bears the costs of successful parties. In the hearing before us, the Attorney was successful in the argument that the proceedings initiated by the Authority should be dismissed. These are persuasive considerations for an order for costs in favour of the Attorney, though they overlook the statements on public interest immunity made in favour of the Authority. Importantly, they overlook another matter. The hearing of the applications with which we are presently concerned was followed by the hearing of matters Nos. G234 of 1985 and G344 of 1985. These were applications by the Attorney, in one case seeking judicial review of a decision by the Commissioner and in the other seeking a writ of mandamus against him. Both applications arose from the Warumungu Land Claim, the claim with which matters Nos. VG237 of 1985 and G336 of 1985 were concerned. The applications concerned the Commissioner's rulings on questions of professional privilege and the waiver thereof. It is unnecessary to refer to these questions in detail for they are considered at length in the several reasons for judgment of the members of this Court. It is enough to say that the Attorney was unsuccessful in both applications. The Land Council was a respondent in both applications and succeeded in its contention that the applications should be dismissed. The Authority was not a party to those applications. While it is only in matters Nos. VG237 of 1985 and G336 of 1985 that an order for costs is sought, it would be unrealistic to leave out of account the fate of the other matters which, for all practical purposes, formed part of the same hearing. It is true that if an order for costs were to be made in those matters in accordance with the general rule, the Attorney would be ordered to pay the costs of the Land Council and not of the Authority which was not a party. But we are of opinion that as between the Land Council and the Authority there are good reasons for departing from the ordinary rule concerning costs. Those reasons are to be found in what we have said concerning the stand taken by the Land Council and the Authority before the Commissioner, the arguments of those parties before this Court and the fate of those arguments as reflected, not merely in the formal orders made by the Court but in our reasons for judgment. If it were otherwise appropriate to order the Authority to pay the costs of the Attorney, it would, we think, be necessary to reconsider the position of the Land Council and the Authority vis-a-vis each other and the position of the Attorney in relation to the four matters in which he was a party, in two of which he may be said to have been unsuccessful. We are of the opinion that in all the circumstances justice would be served if there be no order for costs in any of the matters, though necessarily our order is confined to matters Nos. VG237 of 1985 and G336 of 1985, no order for costs having been sought in the other matters. Feei:.y wat this and the © preceding pages are a true copy of the reasons for Judgment herein of the Court Co wihlianr. Associa : Dated 16 September (ASG.