ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL (9 July 1998) [1998] NSWLEC 8

Land and Environment Court of New South Wales

CITATION : ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL (9 July 1998) [1998] NSWLEC 8 Applicants: Andrew Donnelly & David Mundine PARTIES : First Respondent Tenterfield Shire Council Second Respondent Ross Mining NL Third Respondent Capricornia Prospecting Pty Ltd FILE NUMBER(S) : 40295 of 1997 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: Oshlack v Richmond River Council in the High Court (HCA 11 unreported 25 February 1998); CASES CITED: Timbarra Protection Coalition Inc v Ross Mining NL & Ors (40222 of 1997 unreported 15 May 1998); Hinchinbrook Society Inc v Minister for Environment & Ors (NG 164 of 1997 unreported Federal Court of Australia 30 April 1998); in Oshlack v Richmond River Council & Anor (1994) 82 LGERA 236 at 245) DATES OF HEARING: 26 June 1998 DATE OF JUDGMENT: 07/09/1998

Applicants: Craddock Murray Neumann Solicitors LEGAL REPRESENTATIVES: First Respondent Taylor Kelso Solicitors Second & Third Respondents Blake Dawson Waldron Solicitors

JUDGMENT: REASONS FOR JUDGMENT

On 2 June 1998 I delivered a judgment in favour of the respondents who had moved that substantial parts of the applicants' claim be dismissed or struck out. The respondents were wholly successful.

The second and third respondents claim their costs in relation to the notice of motion the subject of the judgment of the Court on 2 June 1998 on the basis of:-

1. The established practice of the Land and Environment Court that an unsuccessful applicant in class 4 proceedings should pay the respondent's costs.

2. A general rule that a wholly successful respondent should receive its costs unless good reason is shown to the contrary. This should be understood as a principle guiding the exercise of the discretion rather than a hardened legal rule.

3. Where a costs discretion is conferred by a section such as s 69 of the Land and Environment Court Act 1979, in the absence of special circumstances, a successful party has a reasonable expectation of obtaining an order for costs in its favour unless, for some reason connected with the case, a different order was specially warranted.

4. This settled practice has been repeatedly recognised in the Land and Environment Court both before and after Oshlack v Richmond River Council in the High Court (HCA 11 unreported 25 February 1998).

5. In Timbarra Protection Coalition Inc v Ross Mining NL & Ors (40222 of 1997 unreported 15 May 1998) the Court held that the general principle is that, in the absence of special circumstances, costs follow the event in class 4 matters.

6. The proceedings are fundamentally claims seeking to protect the private property interests or "interests in relation to land" alleged to be held by the applicants as "native title holders".

7. Kirby J in Oshlack refers to the courts having taken a discrete approach to: … costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain.

8. In this case, the establishment of the applicants' claim depended on the applicants establishing that they were "native title holders" at common law and/or for the purposes of s 224 of the Native Title Act 1992 (Cmth).

9. This Court's perception of the High Court's decision in Oshlack (as expressed in Timbarra ) has been confirmed in Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (NG 164 of 1997 unreported Federal Court of Australia 30 April 1998).

10. The challenge to ML 1386 was based on a claim that a native title interest raised unexceptional legal issues. It was held to be incompetent for a number of reasons: · the absence of jurisdiction in the Court to determine issues under the Native title Act 1992; · the absence of jurisdiction in the Court to determine a direct challenge to a mining lease granted under the Mining Act 1992; · section 74 of the Mining Act 1992; and · section 137 of the Mining Act 1992.

11. The legal issues raised in the second and third respondents' notice of motion were all comparatively clear. This case cannot be regarded as a "test case" of difficult or novel legal issues (see Stein J in Oshlack v Richmond River Council & Anor (1994) 82 LGERA 236 at 245).

The proceedings have now been discontinued. The second and third respondents are therefore seeking an order for costs in respect of the whole of the proceedings.

Mr Neumann, for the applicants, makes the submission that the case has the same elements identified by Stein J in Oshlack and recognised by the High Court to justify categorisation of the proceedings as public interest litigation.

Firstly, the applicants did not pursue personal benefit or gain. They were motivated by what he described as a matter of wide public interest, namely the protection of native title. Where Stein J recognised the interest of Mr Oshlack in preservation of endangered fauna and the natural features and flora of the site, the Court should, in this case, regard the preservation of native title in the same way.

Secondly, serious and significant arguable issues were raised in respect of the Court's jurisdiction with the potential for a serious and important impact on planning laws.

Thirdly, the arguments raised for the first time needed to be resolved in the public interest.

The argument and submissions made by the second and third respondents are preferred.

Although the issue of native title is a prominent issue in contemporary Australia, its existence at common law has been confirmed by the High Court and recognised by the Native Title Act (Cmth). There is no identified public interest in attempting to vest this Court with jurisdiction to hear and determine what, in effect, amounted to a claim for establishment of native title. Although the consequences of the establishment of a native title to the relevant land may have some consequences for the consideration of planning issues, the question of whether this Court should recognise jurisdiction to prove native title as a primary task is not, in my opinion, a matter of public interest in the sense adopted by Stein J in Oshlack .

The rights that the applicants claimed are, in a sense, private rights, notwithstanding the wide context of native title. The public interest in planning and environmental issues is not necessarily served directly by the recognition of native title, even though the existence of a particular title might, in some circumstances, be a relevant matter to be taken into account under the planning legislation of New South Wales.

The second and third respondents have been wholly successful in defending the proceedings in so far as the issues raised in the notice of motion are concerned.

Following the formal discontinuance, they are, prima facie, entitled to the whole of the costs of the proceedings. No exceptional circumstances which would preclude the Court from exercising its discretion in their favour have been demonstrated.

I find therefore that there is no reason why the Court should not make an order in favour of the second and third respondents notwithstanding that argument in support of an application by the first respondent for an order for costs is pending.

The first respondent was taken by surprise when the second and third respondents' application came on for hearing without any formal notice of motion. Directions have been made for the filing of written submissions by the applicants and the first respondent.

The applicants are ordered to pay the second and third respondents' costs of the proceedings.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

ASSOCIATE

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