FEDERAL COURT OF AUSTRALIA Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 COSTS – application under Administrative Decisions (Judicial Review) Act 1997 (Cth) to review decision of Native Title Registrar as under s 190A of the Native Title Act 1993 (Cth) – Registrar decided to place application for determination of native title on Register of Native Title Claims – application to review decision unsuccessful – whether public interest or public importance warrants departure from ordinary rule as to costs – relevance of s 85A of Native Title Act 1993 (Cth) Native Title Act 1993 (Cth) ss 62, 85A, 190, 190A, 190B, 190C Administrative Decisions (Judicial Review) Act 1997 (Cth) Native Title Amendment Act 1998 (Cth) Northern Territory of Australia v Doepel [2003] FCA 1384 cited Cretazzo v Lombardi (1975) 13 SASR 4 applied Ruddock v Vardalis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 followed Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 cited Western Australia v Ward (2002) 76 ALJR 1098 cited Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 cited Brownley v Western Australia (1999) 95 FCR 172; [1999] FCA 1431 applied Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 considered NORTHERN TERRITORY OF AUSTRALIA v CHRISTOPHER DOEPEL, ALAN YOUNG & BILL HARNEY D 17 of 2002 MANSFIELD J DARWIN 3 FEBRUARY 2004 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 17 OF 2002 BETWEEN: NORTHERN TERRITORY OF AUSTRALIA APPLICANT AND: CHRISTOPHER DOEPEL FIRST RESPONDENT ALAN YOUNG AND BILL HARNEY (ON BEHALF OF THE WARDAMAN, LIYI, YINGAWURNARRI AND NARRWAN GROUPS) SECOND RESPONDENTS JUDGE: MANSFIELD J DATE OF ORDER: 3 FEBRUARY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant pay to the second respondents their costs of the application. 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 17 OF 2002 BETWEEN: NORTHERN TERRITORY OF AUSTRALIA APPLICANT AND: CHRISTOPHER DOEPEL FIRST RESPONDENT ALAN YOUNG AND BILL HARNEY (ON BEHALF OF THE WARDAMAN, LIYI, YINGAWURNARRI AND NARRWAN GROUPS) SECOND RESPONDENTS JUDGE: MANSFIELD J DATE: 3 FEBRUARY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 28 November 2003, the Court dismissed an application by the applicant for an order setting aside the decision of the Native Title Registrar (the Registrar) made on 31 October 2002 to register the application of the second respondents made under s 61 of the Native Title Act 1993 (Cth) (the Act) for the determination of native title (the primary application): see Northern Territory of Australia v Doepel [2003] FCA 1384. For the sake of clarity I shall call the applicant's application 'the review application'. Consequently the primary application was, and remains, on the Register of Native Title Claims under s 190 of the Act. The review application was made under the Administrative Decisions (Judicial Review) Act 1997 (Cth) (the ADJR Act). 2 The first respondent, who is the Registrar, did not participate in the hearing. He submitted to any order the Court should make, save as to costs. 3 The real opponents to the review application were the second respondents. They were successful in their opposition. They sought costs of the review application. Despite its lack of success on the application, the applicant opposes any order for costs. 4 There is no issue about the starting point of the applicant's contentions. The discretion to award costs is absolute and unfettered. It must however be exercised judicially, and it cannot be exercised on grounds unconnected with the litigation: Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ: Ruddock v Vardalis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at 234, [10] per Black CJ and French J (Ruddock). 5 In Ruddock, Black CJ and French J discussed at some length the principles governing awards of costs at 234-241, [9]-[25]. After referring to that primary principle, their Honours continued at 234-235, [11]: 'Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: · Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. · Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.' See also Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477. 6 The applicant contends that there are special circumstances in this matter justifying departure from the ordinary course. Departure from the ordinary course would, it was urged, reflect that the Court had not by default calcified the exercise of the discretion so as to award costs routinely to a successful party. The special circumstances warranting departure from the ordinary course were said to be: * that the application raised novel questions of general importance under the Act; * that it was in the public interest that the law be clarified by the Court determining those questions; * that the applicant's approach to the application had been a reasonable one, in that it sought to explain to the second respondents the reasons for its review application (i.e. the novelty and general importance of the questions raised) and sought to conduct the application expeditiously and co-operatively; and * that the application concerned the construction of provisions under the Act, and provisions which are of general significance, so that the 'spirit' of s 85A of the Act should be applied. Section 85A of the Act provides that, unless a party has acted unreasonably, and unless the Court otherwise orders, each party to a proceeding under the Act should bear that party's own costs. 7 Finally, counsel for the applicant pointed out that the solicitor for the second respondents is the solicitor for the Northern Land Council. The Northern Land Council was said, without demur from counsel for the second respondents, to have 'funded' (that is, I assume, to have agreed to provide representation at its cost to) the second respondents. The sources of funds to the Northern Land Council ultimately are grants from the Commonwealth Government. That, it was contended, illustrates the public benefit of the application. It also was said to show that the character of any costs order will in reality be the payment of the costs from the applicant to a body publicly funded by the Commonwealth rather than to an individual person or company. I do not consider that matter has much significance to the exercise of the discretion to award costs. Costs are, of course, compensatory. If a successful party has incurred costs in a proceeding, so that the ordinary rule – if applied – would result in an order for costs in that party's favour, the fact the successful party is in some way related to government does not mean the costs have not been incurred. Nor does it mean that the party has unlimited access to funds, so that the funds expended on the proceedings are not meaningful to that party. Indeed, it is now commonplace that costs are awarded in favour of governments which are successful parties in litigation. (It was not contended that there was a special retainer arrangement between the solicitors for the second respondents and the second respondents so that the second respondents would not be charged for their legal representation in any circumstances; if that were the case, the need for a compensatory order for costs in favour of the second respondents would not arise.) 8 Much of what counsel for the applicant put in support of those contentions was not disputed by counsel for the second respondents. 9 The application did require careful consideration of provisions of the Act, particularly those concerning the functions of the Registrar when considering under s 190A to s 190C whether to accept for registration an application for determination of native title. Those provisions are of relatively recent origin. They were introduced into the Act only by the Native Title Amendment Act 1998 (Cth). Their proper construction has given rise to the issues raised on the application, many of which have not previously been the subject of judicial consideration. There are a number of contentions raised by the applicant which did not lend themselves to ready resolution by analogy with decisions under other provisions of the Act or under comparable legislative provisions. There is a benefit to the Registrar in having judicial consideration of those provisions of the Act relevant to the task of determining whether to accept for registration an application for determination of native title. Such consideration should also be of benefit to those confronted with the issue of whether the Registrar will accept for registration certain applications for the determination of native title. As counsel for the applicant also pointed out, there was further reason to visit the registration provisions under the Act in the light of the recent High Court decisions in Western Australia v Ward (2002) 76 ALJR 1098 and in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58. 10 Ruddock was a case where, by majority, no order for costs was made in favour of a wholly successful respondent. Black CJ and French J at 242, [29] described the case in the following terms: 'This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may [sic] of the previous decisions concerning the impact of public interest considerations on costs awards have been made.' Their Honours' reference to the 'predominantly environmental litigation' refers to decisions they considered whilst addressing circumstances where the public interest has been held to warrant departure from the ordinary rule (at 235-240, [13]-[25]). Of course, I am guided by and propose to follow their Honours' analysis. 11 It is plain enough that the judicial exposition or clarification of what is intended by certain legislation is in the public interest, as well as resolving the particular dispute between the parties. To varying degrees, there is an element of public interest in many cases. Moreover, where the Commonwealth or a State or Territory is the applicant in a proceeding it will very commonly be seeking to maintain a position in the public interest. I use 'public interest' in a wider sense than simply seeking to recover a claimed indebtedness, for example a taxation liability, even though in a sense the recovery of such indebtedness might also be fairly described as in the public interest. The majority in Ruddock said at 236, [14]: 'In any event it must be recognised that the concept of the "public interest" is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.' 12 Upon analysis, I do not consider that the particular features of the review application are such as to lead to the view that there should be no costs order. Although the matters raised by the applicant did raise for consideration the construction of ss 190A, 190B and 190C of the Act, and the other provisions to which they refer, resolution of the various issues did not turn exclusively or indeed largely simply upon their construction. 13 In respect of the attack upon the Registrar's conclusions about the composition of the native title claim group, it was necessary both to determine the extent of the Registrar's functions and to have regard to the material before him to review the way in which he fulfilled those functions. For the latter purpose, regard was had to the terms of the primary application. Assuming the Registrar was required to address the factual issue as to the inclusiveness of the described native title claim group, the issue of whether he had properly done so involved extensive consideration of the evidentiary material before the Registrar. It was also necessary to address a particular contention that the Registrar's manner of expression disclosed that he had misunderstood his functions; that contention did not involve any consideration of the proper construction of any particular provisions of the Act. In respect of the applicant's challenge to the Registrar's finding that, for the purpose of registration, the authorisation requirements of those provisions were met, similar observations may be made. Consideration of what ss 190B and 190C required in that regard was necessary. But again, the contentions also required detailed consideration of the material before the Registrar to determine if those requirements were properly satisfied. It also required consideration of whether the affidavits filed with the application satisfied the requirements of s 62 of the Act. That also involved both determining the proper meaning of s 62 and then an assessment of the quality and content of the affidavits. The third principal line of attack of the applicant upon the Registrar's decision concerned his findings about the native title rights and interests claimed. Consideration of those contentions involved consideration of the proper construction of certain provisions of the Act, particularly parts of s 190B, but it also required consideration of the material submitted to the Registrar and the quality of his findings based upon that material. 14 Accordingly, I consider the application involved consideration not simply of the proper construction of ss 190A, 190B and 190C of the Act, and sections to which they relevantly referred, but to a significant degree also turned upon its own particular facts and circumstances. In the latter respect, it was of no particular importance other than to the parties. Each application for the determination of native title which the Registrar has to address to determine whether to enter it on the Register of Native Title Claims will similarly have to be addressed in its own context and in its own particular circumstances. Moreover, whilst certain aspects concerning the proper construction of sections of the Act which arose in the review application are of general importance, that cannot be said of all the issues of construction which arose. There were several contentions of the applicant concerning features of the primary application which could not readily be described as giving rise to issues which are likely to arise in considering the registrability of all or many other applications for the determination of native title. The consequence is that the particular provisions of the Act to which those contentions directed attention are not ones which are of high public importance or which give rise to commonly raised issues. The construction of a provision of legislation does not, in every instance, attract the description as being of significant public importance. 15 It is clear that s 85A of the Act does not apply to proceedings under the ADJR Act which seek to review a decision made under the Act: Brownley v Western Australia (1999) 95 FCR 172; [1999] FCA 1431. Although the nature of the decision the subject of the application for review in that matter is not the same as the decision of the Registrar now under review, counsel for the respondent did not contend that I should not follow that decision, or that s 85A of the Act applied directly to the present application. 16 Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 at [27]-[28] is a case in which review was sought under the ADJR Act of a decision of the Registrar to register an indigenous land use agreement under Subdivision C of Division 3 of Part 2 of the Act. The review application was unsuccessful. Marshall J at first instance nevertheless declined to order costs in favour of the successful respondent. His Honour followed the 'spirit' of s 85A of the Act, as the proceeding was centrally concerned with the correct interpretation of important provisions of the Act. The Full Court (Spender, Branson and North JJ) at [28] considered that approach 'entirely appropriate in the circumstances of a first instance hearing'. Costs of the unsuccessful appeal were however awarded. 17 It would clearly be remiss to adopt a rule that, where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the 'spirit' of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Act, and involved consideration of the particular sections directing how that function was to be conducted. I have therefore included such consideration in the exercise of my discretion. 18 Here, I have accepted the public importance of some of the issues which arose and the novelty of those issues. I have also taken into account what was put as to the reasonableness of the applicant's conduct of the review application. I accept its conduct of the review application was as described in its submission. The second respondent also conducted the review application efficiently and co-operatively. This factor is not of much moment in the exercise of the Court's discretion. Overall, in the light of all the submissions, notwithstanding both the public interest in the judicial resolution of certain issues and the relevance of s 85A of the Act in the way I have sought to indicate, I consider that the applicant should be ordered to pay the costs of the application. The nature and range of the issues addressed, both legal and factual, has led me to the view that on balance the ordinary rules as to costs should apply. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 3 February 2004 Counsel for the Applicant: R Levy Solicitor for the Applicant: R Levy Counsel for the Respondent: M Storey with D Lavery Solicitor for the Respondent: Solicitor for the Northern Territory Date of Hearing: 2 December 2003 Date of Judgment: 3 February 2004