wee ne te ee th o SV7 NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } ) CORAM: PLACE: DATE: GENERAL DIVISION BETWEEN: AND: AND: WILCOX J SYDNEY 31 OCTOBER 1986 MINUTES OF ORDER No. G.435 of 1986 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant THE HONOURABLE ALLAN CLYDE HOLDING, MINISTER FOR ABORIGINAL AFFAIRS First Respondent ROBERT AUBREY BRADSHAW ACTING REGISTRAR GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent IN THE MATTER OF THE ALLIGATOR RIVERS STAGE II LAND CLAIM PRINCIP; REGISTRY we eee om THE COURT ORDERS THAT: l. Note: The Application is dismissed. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ane ft at ate we ay ae SOTTO SE er Ste rn ee ee apt eee ee ee soe wre re -orer —~ rh aad NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ee ewe BETWEEN : CORAM : WILCOX J PLACE: SYDNEY DATE: 31 OCTOBER 1986 AND: No. G.435 of 1986 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant THE—HONOURABLE ALLAN CLYDE HOLDING, MINISTER FOR ABORIGINAL AFFAIRS First Respondent ROBERT AUBREY BRADSHAW ACTING REGISTRAR GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent IN THE MATTER OF THE ALLIGATOR RIVERS STAGE II LAND CLAIM EXTEMPORE REASONS FOR JUDGMENT nee ew oe ome flay ler © er rere teri I have been informed this morning that the Minister yesterday decided to revoke the decisions the subject of the application for review and that he has issued a public statement inviting representations from all those who are interested in the matter as to the decisions which he ought to take in regard to the implementation, in respect of the relevant areas, of the recommendation of Toohey J as Aboriginal Land Commissioner. There has been handed to me a copy of a letter from the Australian Government Solicitor, written on behalf of the Minister, to the solicitors for the applicant -- dated yesterday -- in which the decisions are set out and further submissions are invited. Counsel for the applicant suggests that, notwithstanding those decisions by the Minister, I should make an order setting aside his previous decisions. I take the view that the Court would be justified in setting aside a decision of a Minister, or any other decision-maker under an enactment, only if first satisfied that the decisions were invalid in point of law. Invalidity has not been conceded by counsel for the respondent and there is nothing before me to indicate that the decisions under attack are invalid. I hasten to add that this does not indicate any view as to whether or not it might have been possible for the applicant in these proceedings to put material before the Court which. a a ame soe wry wer reer me, Pio lade enhanc amen iad SS would indicate invalidity. I have no opinion one way or the other as to whether invalidity could have been shown in these proceedings. Having regard to the fact that the decisions are not to be acted upon, it would be a waste of the Court's time and an unnecessary expense to the parties to embark upon a hearing of a matter which is now entirely academic. Consequently, I do not accede to the suggestion that I should make a formal order in regard to the decisions. I think that the appropriate order is to dismiss the Application. Both parties claim orders in their favour for costs. On behalf of the appliéant Mr Barret says that the Minister's decisions are, in effect, a concession that he would have failed in these proceedings; and consequently that his client should have the cost of the proceedings. On behalf of the respondent, Mr Sher QC 'points to the history of the matter and, in particular, the fact that it was not until after the subject decisions were made that the Northern Territory Government evinced any interest in making further representations. He says that, from the time of the Minister's initial decision ~- made on 15 March 1983 -- to recommend these grants until after the decisions the subject of these proceedings, there was no representation from the Northern Territory Government. are cvrma ere ee et ee nS I can understand that the Northern Territory Government would have thought that there was no point in making representations up until the date of the decision of the High Court on 31 July 1986, by which it was determined "finally that the Minister's earlier decision was invalid. Until that date, the Minister was taking and maintaining the position that he had made a valid decision to proceed with a recommendation for a grant. Consistently with that he may -have not been prepared to take into account further matters put before him by the Northern Territory. At least it was reasonable for the Northern Territory Government to act upon that assumption. However, after 31 July 1986, it must have been obvious to everybody concerned that the Minister would have to reconsider the matter. It is, under those circumstances, surprising that nothing was put before the Minister between that date and 25 September 1986 when he made the decisions under attack. I think that the Minister is entitled to point to that matter as indicating that he would not reasonably have expected that the Northern Territory Government would wish to put further matters before him, or that there would be any attack on his decisions because of his failure to invite further representations from the Northern Territory Government. ~— . Notwithstanding this, if I had come to the conclusion that there was material to indicate that the decisions were clearly invalid, and that the Minister had revoked the decisions simply in anticipation of a court holding invalidity, I would take the view that the applicant should have his costs. I do not think that a decision-maker ought to be allowed to deprive an applicant of costs merely by conceding to the inevitable. However, in this case it is far from clear as to what the position would have been had the matter been fully litigated. I take into account the strong probability that the Minister was influenced by political considerations, in the sense of wishing to maintain harmonious relationships with the Northern Territory Government. He may have taken the view that, whatever his prospects in court, it would be desirable to allow the Northern Territory Government to put whatever it wished before him. I do not think that there should be an order for costs in favour of either party. In relation to the applicant such an order would only be appropriate where it is clear that the applicant would have been likely to be successful. In relation to the respondent it is my view that it would be appropriate to order the applicant to pay the costs only where the Court could reach a clear view that the application would have failed. As I have said, it is not possible to forecast the outcome of the p.coceedings. : I also take into account the fact that the grounds of attack have been expanded considerably in very recent times. To the extent that the Minister has been influenced by matters which have been raised for the first time either yesterday or on Wednesday this should tell against the applicant. In my view the fair course is to dismiss the Application and to make no order as to costs. I so order. — -—~. I certify this and the five (5) preceding pages to be a true copy of the Reasons'for Judgment of his Honour Mr Justice Wilcox. > ! , Associate: LEZ ane lice> Date: 14 November 1986 i Counsel for the Applicant: Mr J D Barrett Solicitors for the Applicant: - Freehill, Hollingdale & Page as Agents for the Crown Solicitor for the Northern Territory of Australia Counsel for the Respondent: Mr J L Sher Qc with Mr DM Yates Solicitors for the Respondent: Australian Government Solicitor Date(s) of hearing: 31 October 1986 wee pie mean Gea