FEDERAL COURT OF AUSTRALIA Gumurdul v Northern Land Council [2000] FCA 1345 DONALD GUMURDUL & ORS v NORTHERN LAND COUNCIL & ANOR D 7 of 2000 FINN J 18 SEPTEMBER 2000 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT D 7 OF 2000 REGISTRY BETWEEN: DONALD GUMURDUL, ANNE GUMURDUL, HELEN GUMURDUL, VICTOR GUMURDUL, NIPPER GUMURDUL, CLARA GUMURDUL, EVONNE GUMURDUL AND ADRIAN GUMURDUL FIRST APPLICANTS 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: 18 SEPTEMBER 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. the applicants pay the respondents' costs of and incidental to the proceeding, including reserved costs and the costs of the notice of motion dated 11 August 2000. 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 7 OF 2000 BETWEEN: DONALD GUMURDUL, ANNE GUMURDUL, HELEN GUMURDUL, VICTOR GUMURDUL, NIPPER GUMURDUL, CLARA GUMURDUL, EVONNE GUMURDUL AND ADRIAN GUMURDUL FIRST APPLICANTS 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: 18 SEPTEMBER 2000 PLACE: CANBERRA REASONS FOR JUDGMENT 1 I have today made orders giving leave to the applicants to discontinue this proceeding, which was instituted on 11 July of this year. The application itself was filed in reliance upon the liberty so to do I granted when dismissing an earlier proceeding on 20 June 2000, that proceeding being struck out under O 20 r 2 of the Federal Court Rules ("the Rules"). The sole outstanding issue in the matter relates to costs, and I have communicated to the parties that I order that the applicants pay the respondents' costs of and incidental to the proceeding, including reserved costs and the costs of the notice of motion dated 11 August 2000. I should indicate that that notice of motion was filed in this proceeding for the purpose of applying for an extension of time in which to file and serve an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). I now provide reasons for my costs order. 2 I need not outline in any detail the substance of the matter that was in dispute between the parties other than to say that, as with its predecessor proceeding, it related to the service of a notice to quit on the third applicant ("the Club") 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 I should note that in the previous proceeding an order was made by O'Loughlin J on 25 January 2000 that "the respondents undertake not to enforce or otherwise act upon the notice to quit" until a specified date or until further order. In dismissing that application on 20 June 2000 I noted that the undertaking so given would continue in force pending the bringing of, or an application to bring, a further application within the timetable I set down in my orders. 4 On 10 July - that is three days before the date fixed by my 20 June orders for the filing and serving of a fresh application - the respondents wrote to the applicants' solicitors indicating, first, that they considered any further proceeding would be futile but, secondly, that the Council and the Trust were prepared not to rely upon the notice to quit and to allow the Club to continue to occupy the land on the three month periodical tenancy provided for in the terms of the expired lease if and while the Club negotiated in good faith on the terms of any future occupation of the land. 5 Nonetheless on 11 July the present proceeding was filed. There clearly could be said to have been prudential reasons for this being done. What is surprising, however, is that it is the respondents' offer contained in the 10 July letter which ultimately has provided the foundation for the notice of discontinuance filed by the applicants on 15 September. The notice of discontinuance required in the circumstances the leave of the court. For this reason the costs rule contained in O 22 r 3 of the Rules did not apply automatically so as to render the applicants liable to pay costs of the respondents occasioned by the proceeding. The question of costs is in consequence in the discretion of the court. Nonetheless, in the circumstances of a matter such as this where it is the applicants who seek to discontinue the proceeding and do so because of what is, in effect, an offer made prior to its institution by the respondents, it seems to me strong circumstances would be required to be shown before the respondents should be denied their costs of the proceeding. The policy manifest in O 22 r 3 is, in my view, a policy to which regard should be had when it is the court that is called upon to determine the incidence of costs: see in relation to policy, Grundy v Lewis (unreported, Federal Court of Australia, Cooper J, 28 May 1998) at 12. 6 The applicants have tendered a sequence of communications between the parties from the 10 July letter through until correspondence notifying of the intention to withdraw or discontinue the proceeding. The burden of this correspondence is, it is said, to show that the applicants were seeking at least from August to have the proceeding adjourned pending the outcome of negotiations regarding any future occupation of the land. It is unnecessary for me to set out the volume of communications sent between the parties in this period. Suffice it to say it reflects misapprehension on behalf of the applicants as to what was being proposed by the respondents in their 10 July letter. It evidences actions by the applicants that could be taken as suggesting they were continuing to prosecute their claim, notwithstanding intimations that they would seek an adjournment of it. For example, on 11 August, they filed and served a notice of motion and affidavit in support of the motion to extend time to file and serve an application for an order of review. The correspondence particularly on the applicants' part is not a model of clarity. I do not consider that the respondents in taking the stance that they took, which may appear to be somewhat unbending, had acted unreasonably in the circumstances. Were I to have concluded that they had, a real issue would have arisen as to whether they should have been disentitled from an award of costs or of some part thereof. 7 In the circumstances there appears no reason why the policy of the Rules: Grundy, above; should not be given effect to and that in granting leave to discontinue I should make a costs award of the type that I have. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 19 September 2000 Counsel for the Applicant: Mr J Waters QC with Mr G James Solicitor for the Applicant: Geoff James Lawyer & Notary Counsel for the Respondent: Mr J Basten QC with Mr S A Glacken Solicitor for the Respondent: Brett Midena, NLC Date of Hearing: 18 September 2000 Date of Judgment: 18 September 2000