FEDERAL COURT OF AUSTRALIA FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9 PRACTICE AND PROCEDURE - Costs Federal Court Rules, O 22 r 2(1)(d) Native Title Act 1993 (Cth) Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706 Grundy v Lewis [1998] FCA 563 O'Neill v Mann [2000] FCA 1680 FOUNDATION FOR ABORIGINAL AND TORRES STRAIT ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION v MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS Q 36 OF 2000 COOPER J BRISBANE 14 JANUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 36 OF 2000 BETWEEN: FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION APPLICANT AND: MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS RESPONDENT JUDGE: COOPER J DATE OF ORDER: 14 JANUARY 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for an order for review is dismissed. 2. The applicant pay the respondent's costs of and incidental to these proceedings, including reserved costs if any, from 18 August 2000, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 36 OF 2000 BETWEEN: FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION APPLICANT AND: MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS RESPONDENT JUDGE: COOPER J DATE: 14 JANUARY 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application for an order of review of the decision of the respondent, made on 13 April 2000, whereby the Minister refused to recognise the applicant as the representative body, under the provisions of the Native Title Act 1993 (Cth) as amended, for an area of land in the State of Queensland known as the Queensland South invitation area. The decision was challenged on the following grounds: that the applicant was denied natural justice; that the decision-maker failed to follow required procedures; and that the decision was an improper exercise of power. 2 This matter had been listed for trial before the Court on 2 and 3 May 2001, but the trial dates were vacated following receipt of advice from the parties that the matter was to be discontinued by the filing of a notice of discontinuance by consent. However, to date, the matter has not been discontinued, as the parties have not been able to resolve the question of costs. 3 The applicant does not wish to proceed further on the application. It does not want to proceed with its application because of the decision of Merkel J in Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706. That decision concerned a similar application for review under the Native Title Act 1993 relating to an area of land in Western Australia. The Pilbara Aboriginal Land Council had challenged the decision of the Minister to refuse to recognise it as the representative body for a particular area on the basis of denial of natural justice. Merkel J determined the decision adversely to the Pilbara Aboriginal Land Council's challenge. 4 The applicant submits that it should only be required to pay the respondent's party and party costs from the date of the decision in Pilbara (that is, 11 August 2000) up to and including the date upon which the applicant advised the respondent that it would not be proceeding with its application (that is, 26 April 2001). The applicant contends that, prior to the decision in Pilbara, it had been able to establish a prima facie case on the grounds of denial of natural justice. The applicant further contends that, following the decision in Pilbara and the appointment of legal representatives in March 2001, the applicant acted in a timely manner and took steps to bring the proceedings to a close without undue costs or delay. The applicant submits that any costs incurred by the parties after 26 April 2001 should be borne by the party incurring them, as the resolution of the outstanding costs issue is "within the province equally of both parties". 5 The respondent, in its submissions, and in the affidavit of Joanne Louise Daniels (sworn 26 September 2001) filed in support of its submissions, accepts that the applicant should not be required to meet the respondent's costs prior to the decision in Pilbara. In fact, the respondent only seeks its costs from 18 August 2000, the date on which the respondent advised the applicant of the decision in Pilbara. The reality is that the only costs in issue are the costs incurred by the respondent after 26 April 2001. 6 Because the applicant does not wish to proceed with its application, the options are to either dismiss the proceeding for want of prosecution or deal with the matter as an application for leave to file a notice of discontinuance under O 22 r 2(1)(d) of the Federal Court Rules. 7 Where an applicant abandons its proceedings there is an underlying policy in the Rules that the discontinuing party should be liable for the other party's costs unless the Court orders otherwise: see Grundy v Lewis [1998] FCA 563 at p 13; O'Neill v Mann [2000] FCA 1680 at [13]. 8 In the present case it falls upon the applicant to persuade me that there are circumstances which would justify departure from the underlying principle. 9 In March 2001, the solicitors for the applicant orally sought that the respondent agree to bear its own costs if the applicant withdrew the proceedings. By letter dated 29 March 2001, the respondent by its solicitor advised that the respondent upon the withdrawal of the application would seek its costs from the date upon which the respondent advised the applicant of the decision in Pilbara (18 August 2000). The letter of 29 March 2001 was treated by the applicant as an offer to compromise by the respondent and was rejected by the applicant by its solicitor's letter dated 2 April 2001. The applicant then made two without prejudice offers to compromise the question of costs which were not accepted by the respondent. 10 On 26 April 2001, the applicant by its solicitors advised the respondent that it did not intend to proceed to trial on 2 and 3 May 2001 and proposed that a notice of discontinuance be filed by consent of the parties with the only issue outstanding being that of costs. 11 Since 26 April 2001 there have been without prejudice offers to settle the proceedings which have not resulted in any agreement. 12 In accordance with the directions of the Deputy District Registrar the applicant filed its submissions in support of the orders it sought on the question of costs on 18 September 2001. Para 3.1 of those submissions stated: 3 Primary Submission 3.1 The applicant submits that it pay the respondent the respondent's party and party costs including reserved costs if any from the date of the decision (11 August 2000) of his Honour Justice Merkel in Pilbara Aboriginal Land Council v. Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706 up to an including the date of communication by the applicant to the respondent that the applicant would not proceed with the hearing, such communication being made on 26 April 2001 the particulars of which are as follows: • letter Scott's Lawyers to Clayton Utz 26 April 2001 "Our client's position is that this case will not proceed and that trial date be vacated and a Notice of Discontinuance be filed by consent of the parties, with the only issue outstanding being that of costs. We trust this clarifies the position." 13 On 20 September 2001 the respondent by its solicitors wrote to the applicant's solicitors as follows: "We refer to paragraph 3.1 of your client's Submissions on Costs. We hold instructions to offer, on a without prejudice basis, to settle the costs in these proceedings on the basis of the contents of paragraph 3.1 of those submissions. Please find attached a Notice of Discontinuance and Consent Order. In light of our client's obligations to file their submissions on costs within one week of receiving the (sic) your client's submissions, and in order to avoid further costs on our behalf in preparing our client's submissions, we would appreciate receiving the signed documents by close of business Friday, 21 September 2001. We look forward to hearing from you." 14 Attached to the letter was the following proposed consent order: "BY CONSENT THE COURT ORDERS THAT: 1. The application be discontinued. 2. The Applicant pay the Respondent's party and party costs including reserved costs if any from 11 August 2000 up to and including 26 April 2001." 15 As no notice of discontinuance by consent has been filed and as the applicant has persisted in its application for the Court to determine the question of costs I find by inference that the offer of the respondent contained in the letter of 20 September 2001 was refused. 16 The failure of the applicant to conclude the matter in accordance with the proposal of the respondent contained in the letter of 20 September 2001, having regard to the contents of para 3 of its submissions on costs, and those submissions generally, was unreasonable. 17 It was always open to the applicant to limit the costs it would be liable to pay as and from 26 April 2001 by agreeing to pay the costs up to that date or applying to the Court for leave to discontinue conditional upon paying the respondent's costs to that date or paying its costs on some other basis. The applicant sought to negotiate a better position as to costs while at the same time having determined to abandon its proceedings. It was entitled to do so but was at risk as to additional costs if it failed. 18 There has been no attempt to explain why, when the respondent was prepared to sign a notice of discontinuance subject to obtaining the order for costs proposed in para 3 of the applicant's submissions, such a course was rejected by the applicant. 19 In the circumstances, no basis has been shown for refusing the respondent an order for its costs of the proceedings incurred from 18 August 2000 up to and including the making of these orders disposing of the proceedings. 20 In my view, having regard to the history of the matter, the preferable course is to dismiss the proceedings rather than to grant leave to file a notice of discontinuance. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 15 January 2002 Solicitor for the Applicant: Scott's Lawyers Solicitor for the Respondent: Clayton Utz Date of Hearing: Matter dealt with by way of written submissions Date of Judgment: 14 January 2002