Refshauge ACJ
In this matter, Refshauge ACJ granted the applicant leave to discontinue the proceedings he had commenced against the respondent. The applicant, Mr Mortimer, is a self-represented litigant and in April 2016 had commenced proceedings to prevent the respondent, Auswide Services Limited (trading as Caloola Farm) from selling certain property in the ACT and ‘to reinstate the said property to the original common law native title holder’. Refshauge ACL granted an interim injunction in May 2016 while Mr Mortimer obtained legal advice.
Refshauge ACJ considered that Mr Mortimer was seeking to challenge the system of land title itself, and determined that this would conflict with the decision in Mabo v Queensland (No. 2) [1992] HCA 23. His Honour held that Mr Mortimer could use these proceedings to challenge the decision of the High Court through the appellate process, but that if Mr Mortimer wished to do so he would need to restructure the current proceedings and join with the ACT government and probably the Commonwealth, as well as release the defendant from the proceedings. Refshauge ACJ dissolved the injunction, finding that the current proceedings were not the appropriate forum for challenging the right of any non-Indigenous person to the parcel of land. Mr Mortimer sought to discontinue the proceedings and Refshauge ACJ gave him leave to do so.
Mr Mortimer then sought an order that each party pay their own costs. His Honour held however that the usual rule that the plaintiff pay the defendant’s costs on discontinuance should apply. His Honour reasoned that, following ACT Fire Brigade v Ken Nester [2004] ACTSC 125, the fact that a costs order would be onerous is not, of itself, a factor to be taken into consideration if costs are otherwise appropriately payable. Further, Refshauge ACJ held that this case should not be considered public interest litigation following the factors outlined in Oschlack v Richmond River Council [1998] HCA 11.
Another Indigenous elder, Gary Robert Caines, sought to be substituted as plaintiff if leave were granted to Mr Mortimer to discontinue the proceedings. Refshauge ACJ rejected this request and held that Mr Caines can commence new proceedings.