Gumurdul v Northern Land Council [2000] FCA 834

FEDERAL COURT OF AUSTRALIA

Gumurdul v Northern Land Council [2000] FCA 834

DONALD GUMURDUL & ORS v NORTHERN LAND COUNCIL & ANOR D 1 of 2000 FINN J 20 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 1 OF 2000

BETWEEN: DONALD GUMURDUL

FIRST APPLICANT

JACOB NAYINGGUL

SECOND APPLICANT

GUNBALANYA SPORTS AND SOCIAL CLUB INC

THIRD APPLICANT

AND: NORTHERN LAND COUNCIL

FIRST RESPONDENT

ARNHEM LAND ABORIGINAL LAND TRUST

SECOND RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 20 JUNE 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the applicants pay the costs of the respondents' notice of motion on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 1 OF 2000

BETWEEN: DONALD GUMURDUL

FIRST APPLICANT

JACOB NAYINGGUL

SECOND APPLICANT

GUNBALANYA SPORTS AND SOCIAL CLUB INC

THIRD APPLICANT

AND: NORTHERN LAND COUNCIL

FIRST RESPONDENT

ARNHEM LAND ABORIGINAL LAND TRUST

SECOND RESPONDENT

JUDGE: FINN J

DATE: 20 JUNE 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have made orders in this matter dismissing the application filed on 17 January 2000 but with leave to file, or to make an application for an extension of time within which to file, a further application in the matter. I also note that undertakings previously given are to subsist pending the anticipated filing of a further application. The sole remaining question in this proceeding relates to costs which are sought by the respondents on an indemnity basis. 2 The dismissal of the application in the manner in which it has been is the end product of a motion filed by the respondents on 17 March 2000 seeking to have the proceeding dismissed under O 20 r 2 of the Federal Court Rules or else to have a revised Statement of Claim struck out under O 11 r 16 of the Rules. It is unnecessary to outline in any detail the circumstances giving rise to the application other than to say that they relate to the service of a notice to quit on the third applicant which was holding over after the expiry of a lease granted by the second respondent, the Land Trust, the lease having been granted at the direction of the first respondent, the Land Council. The dispute between the parties can be said in a general way to raise issues as to the roles and functions of the Land Council and the Land Trust relative to traditional aboriginal owners of land held by the Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 3 The application when filed did not on its face identify in any fashion the source of the jurisdiction of this Court to entertain the matter. This has been an abiding ill affecting this proceeding. The related Statement of Claim (which was revised on 29 February 2000) sought a variety of orders, some in the nature of declarations, one in the nature of an order of certiorari quashing decisions of the Land Council and others for prohibitory and mandatory injunctions. It was in relation to the revised Statement of Claim that the respondents brought their notice of motion of 17 March 2000. 4 On 20 April 2000, on the hearing of the motion, I ordered that the revised Statement of Claim be struck out but gave the applicants liberty within 21 days to apply both for leave to amend the application and for leave to file and serve any amended Statement of Claim that liberty being limited in a variety of ways. I reserved the question of costs. The revised Statement of Claim with its accompanying application as I have noted did not indicate in any explicit way the basis upon which this Court had original jurisdiction, although it was possible to surmise how it may have from the matter in question though not from the pleading that had been delivered. The reason I gave liberty to apply to amend the application and to file a fresh Statement of Claim was that I was satisfied that there were revealed sufficiently matters that could, properly pleaded, give rise to at least an arguable case for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") (assuming of course an extension of time was granted within which to make such an application). Additionally there was, although again inadequately pleaded, a disputed question of agency which would have been able to have been heard in tandem with an ADJR Act application under the Court's accrued jurisdiction. 5 When the matter was repleaded the applicants, through their legal advisers, apparently misconceived the liberty granted to them. No amended application was brought forward so that the matter remained in that respect as it was from the outset. There was no obvious invocation of the original jurisdiction of this Court other than what could be intuited from the Statement of Claim which was sought to be filed in the proceeding under the liberty that I granted. That Statement of Claim suffers almost the identical vices to those its predecessor suffered. It is premised upon propositions of law which are undoubtedly incorrect; for example, it appears to assert the right of the beneficiary of a trust to dictate to a trustee, and that a trustee, subject to any statutory provision to the contrary, has an obligation to act in conformity with lawful instructions so given. In presenting the matter in the hearing before me counsel for the applicants resiled from so courageous a proposition. Likewise no clear route was marked out in the Statement of Claim which would indicate in respect of what matters the Court has jurisdiction. The applicants have conceded that what they should have done was to make an application for an extension of time in which to file an application under the ADJR Act. I have, in the orders I have made, made provision for such an eventuality. Likewise while the Statement of Claim advances a range of grounds of judicial review of a variety of decisions, the review jurisdiction relied upon is not specified, the grounds themselves for the most part are not particularised and the amenability of some at least of the decisions to judicial review is not made apparent. 6 The failure of the applicants yet again to plead this case by reference to the original jurisdiction of this Court has caused much of the difficulty that has beset both the respondents in dealing with, and the Court in comprehending, the claims that are to be made. No useful purpose would have been served at all in allowing further amendments to the present Statement of Claim. Again it revealed the glimmerings of a claim that could arguably have been made under the ADJR Act and a possible, though again, inadequately pleaded agency question under the Court's accrued jurisdiction. 7 The basis upon which the respondents have sought indemnity costs in respect of their notice of motion is clear enough. Their concern from an early stage with the deficiencies of the pleading were understandable. Before the 20 April hearing before me, they had foreshadowed an application for indemnity costs. They were successful in having the revised Statement of Claim struck out and in the applicants' being put on restricted terms as to any repleading. They equally have been successful in having the application dismissed, albeit with the liberty I have reserved to the applicants. It is not as if the applicants have lacked legal advice and representation in this proceedings. Nonetheless the pleadings that have been struck out have demonstrated a disregard of basic principles. I have indicated some of these in what I have said so far, not the least of which is that the proceeding throughout probably has been incompetent notwithstanding the forbearance that has been shown in attempts to have it reduced to a form which would properly invoke this Court's jurisdiction. 8 There is no doubting the general power of this Court to award costs on an indemnity basis under the Federal Court of Australia Act 1976, s 43. The principles to be applied by the Court in departing from the usual practice of awarding costs on a party-and-party basis have been considered in a number of relatively recent decisions both of the Full Court and at first instance: see, for example, Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; Market Services International Pty Ltd v Nutri-Metrics (International) Australia Pty Ltd (unreported, 11 October 1995, FCA, Full Court); Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685. For present purposes I need only refer to the joint judgment of Cooper and Merkel JJ in Re Wilcox, above,at 156-157 where it is observed: "the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the Court in departing from the usual course". 9 While not expressing any view on what may be the merits of such complaint as may properly be laid by the applicants against the respondents, I am satisfied that the present proceeding is nonetheless one which has been conducted in such a fashion that an indemnity costs award is appropriate. The application has remained unamended, notwithstanding the clear intimation of the need for it to be so, so as to put both the respondents and the Court on notice of the basis of the Court's jurisdiction and of the applicants' claim in the matter. The Statements of Claim that have been filed, or for which liberty to file has been sought, have been woefully inadequate in betraying a cause of action capable of being adjudicated in this Court. The respondents on two occasions have provided quite extensive written submissions that have detailed the vices in the Statements of Claim and which have in effect gratuitously provided helpful instruction to the applicants as to the manner in which a claim properly could be brought in this Court. The applicants have been driven repeatedly to concede the deficiencies in their pleadings. The two hearings before me when coupled with the respondents' submissions have, in effect, provided the applicants with opportunities in which to divine how properly they might be able to formulate a claim within this Court's jurisdiction. Notwithstanding the forbearance that has been shown by the Court, the case is manifestly an appropriate one in which to have the respondents recompensed on an indemnity basis for the manner in which they have been dealt with by the applicants in the manner of their prosecution of this proceeding. 10 Accordingly I will order that the applicants pay the costs of the respondents' notice of motion on an indemnity basis. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.