Case: Northern Territory v Doepel (No 2) [2004] FCA 46
Outcome: considered
In Northern Territory v Doepel (No 2) [2004] FCA 46 , having referred to Murray's case both at first instance and on appeal, Mansfield J observed (at [17]): [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 Acct, and involved consideration of the particular sections directly how that function was to be conducted. I have therefore included some consideration in the exercise of my discretion. I respectfully agree with His Honour's observation. 16 In the circumstances of that case, Mansfield J considered that costs should nonetheless follow the event. 22 I accept that the judicial review proceeding, although not under the Native Title Act , did involve a construction of important provisions of that Act relating to ILUAs. As in Doepel (No 2) , there is a public importance in some of the issues which arose in this case and those issues were novel. Further, it was, with respect, properly conceded by QWI that the judicial review application could not be described as frivolous or vexatious. There was an apparent disparity of resources available as between QWI and the Applicants. QWI (which is wholly owned by the State of Queensland) appeared by senior and junior counsel. The Applicants appeared by their solicitor, save for 1 October 2008 when junior counsel appeared to make submissions in respect of costs. My impression is that, within the limits of available resources, the Applicants prosecuted this application with due diligence. It is true, as QWI submitted, that the ground in respect of which the Applicants enjoyed a degree of forensic success, ground 2, was added relatively late in the course of proceedings and at a time when the bulk of QWI's preparatory costs must necessarily be regarded as having been incurred. Nonetheless, the addition of the ground did not extend the hearing of the application beyond one day. 23 The Applicants found themselves in a position whereby, because of what I have held to be an overly narrow conception on the part of the Delegate of what she could take into account in making a registration decision, they did not have the benefit of a considered decision, albeit from an administrative official, in respect of the worth of their submission that the "CHIMA" provisions found in Sch 3 to the Agreement had the effect, having regard to s 24CE(1) of the Native Title Act and the ACHA, of making that agreement unlawful either in whole or in part and hence incapable in that form of registration under s 24CJ of the Native Title Act . The issue was a novel one. It is also important to remember that a consequence of the registration of an ILUA is that future acts under such an agreement which affect native title are valid. A judicial review proceeding either under the AD(JR) Act or otherwise, challenging a registration decision on this basis was the only alternative left to the Applicants. The native title which they claimed to have would otherwise would subject to such effects as the dam building project may visit upon it. In making the observation, I do not ignore that none of the Applicants is a registered claimant much less that none has the benefit of a determination of native title in respect of any part of the project area. 24 The proceedings are nonetheless not wholly in the public interest. In a sense, the Applicants were seeking to preserve a private, albeit group, claim in respect of native title. Further, I do not ignore a remark by the Delegate in her reasons that one factor at least in the Applicants' opposition to the agreement was environmentally based, rather than based on a claim to native title alone.