Land and Environment Court of New South Wales CITATION : Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (No 2) [2007] NSWLEC 523 APPLICANT Darkinjung Local Aboriginal Land Council PARTIES : FIRST RESPONDENT Minister Administering the Crown Lands Act SECOND RESPONDENT Wyong Shire Council FILE NUMBER(S) : 30425 of 2005 CORAM: Pain J KEY ISSUES: Aboriginal :- land claim:- costs:- exercise of discretion to award costs under s 69 Land and Environment Court Act Aboriginal Land Rights Act 1983 s36 LEGISLATION CITED: Land and Environment Court Act 1979 s69 Land and Environment Court Rules 1996 Pt 16 r 4 Birrigan Gargle Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 80 LGERA 389; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (2006) 149 LGERA 180; CASES CITED: Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292; Maurici v Chief Commissioner of State Revenue (No 8) [2007] NSWLEC 37; Tweed Shire Council v Minister (1996) 92 LGERA 80 DATES OF HEARING: 3 August 2007 DATE OF JUDGMENT: 17 August 2007 APPLICANT Mr T Robertson SC with Mr J Lazarus SOLICITOR Woolf Associates LEGAL REPRESENTATIVES: FIRST RESPONDENT V B Hughston SC and J Waters SOLICITOR Crown Solicitor SECOND RESPONDENT M Wright (Barrister) SOLICITOR Holme Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 17 August 2007 30425 of 2005 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (No 2) JUDGMENT 1 Her Honour: Following my decision in Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (2006) 149 LGERA 180, in which I found that certain land is claimable Crown land under the Aboriginal Land Rights Act 1983 (the ALR Act), I need to make final orders giving effect to the findings in that judgment. One issue that impeded finalisation of this matter was that the Minister Administering the Crown Lands Act (the Minister) no longer owns the land the subject of the Applicant's claim, Wyong Council (the Council), the Second Respondent having acquired it by compulsory acquisition after the claim was lodged. The Council as owner of the land was joined as a party on its application. 2 The issue arose whether the Court had jurisdiction to order the transfer of land identified as claimable Crown land to the Applicant, and by whom. This is the first time this situation has arisen in a matter that has come before the Court. An extensive period of negotiation and further argument over several months has resulted in agreed orders (but for costs) and an undertaking which will ensure the appropriate transfer of land to the Applicant under s 36 of the ALR Act. I do not therefore need to rule on the Court's powers to order transfer of claimable Crown land under that Act in these unusual circumstances. I congratulate the parties in reaching a sensible agreement on this issue. Costs 3 The only outstanding matter to resolve is what is the appropriate costs order. The Applicant argued that its costs ought be paid as it is the largely successful party in the proceedings. This is the appropriate order applying the general discretion to award costs under s 69 of the Land and Environment Court Act 1979 (the Court Act). The Minister argued that the Applicant was not largely successful but rather failed in many of its arguments and should not have any costs awarded in its favour, regardless of which rule was applied to costs. Finding on costs 4 As identified by the Applicant, Pt 16 r 4 of the Land and Environment Court Rules 1996, which deals with costs in some Class 3 proceedings, inter alia, was amended to include 4(1)(c)(vii) "any other appeals, references or other matters referred to in section 19(h) of the Land and Environment Court Act 1979" in April 2007. Such appeals include matters under s 36 of the ALR Act. Accordingly, this rule appears to apply to proceedings of this kind. The rule provides that no order for the payment of costs ought be made unless it is fair and reasonable to do so. On one view this rule could apply to this matter as it took effect before final judgment has been delivered. 5 While I heard argument from the Applicant's counsel about whether given the recent Court of Appeal decision of Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292 this rule or the previous "exceptional circumstances" test applied in some earlier ALR Act cases applies at all, I do not need to rule on that issue. The preferable approach in this matter is that the costs regime in place at the time the proceedings were commenced and the vast majority of costs were incurred should be applied. In drawing that conclusion I take into account the analysis of Biscoe J in Maurici v Chief Commissioner of State Revenue (No 8) [2007] NSWLEC 37 at [67] and [68] to the effect that statutes which are procedural in nature, which includes costs matters, can have retrospective operation provided that no injustice is done. 6 The costs rule in force at the time the proceedings commenced and were heard and judgment given on the substantive findings in 2006 was relevantly s 69 of the Court Act. That rule provides that costs are to be awarded at the discretion of the judge. The usual rule would be that costs follow the event. While it has taken several months to finalise appropriate orders it is clear that the majority of costs incurred were at a time when the Applicant's expectation would be that costs would follow the event so that if successful its costs would be paid. I consider in the circumstances of this case I should adopt the approach in these types of matters as identified by Bannon J in Birrigan Gargle Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 80 LGERA 389, that essentially costs ought follow the event. 7 As the Applicant is largely successful it should have its costs paid. It was required to argue a large number of issues because of the large number of matters relied on in the Minister's reasons for refusal of the claim. One reason was that the land was needed for essential public purposes based on seven uses of the land, as summarised at [7] of my first judgment. The claim was also opposed on the basis that the land was being lawfully used and/or occupied by the Council on the basis of nine uses, as identified at [8] of my first judgment. While the Applicant did not succeed on every argument I had to decide, a fair reading of the judgment suggests that it succeeded in obtaining a finding that a substantial portion of the land claimed was claimable Crown land. Which Respondent(s) liable for costs? 8 The Minister argued that if costs were awarded in favour of the Applicant these costs should be apportioned between it and the Council. The Council opposed any such apportionment of costs between the Respondents. The Council submitted that any order as to costs should be borne solely by the Minister. 9 The central and essential role of the Minister under s 36 of the ALR Act was identified in Tweed Shire Council v Minister (1996) 92 LGERA 80, particularly per Meagher JA at 83 (Priestley JA concurring). The Minister chose to defend these proceedings, that is resist the Applicant's claim, and did so on the basis of the Council's use of the land. The Minister could have chosen not to defend the proceedings. That decision is entirely within the Minister's powers under the ALR Act. The Council does not have any legal role under s 36 of the ALR Act. The fact that the Council sought to be and was joined as a party in the unusual circumstances of this matter does not mean, given the Minister's essential role under the ALR Act, that it should be liable for costs along with the Minister. 10 I consider the appropriate order for costs is that the Minister (the First Respondent) is liable to pay the Applicant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.