In this matter, Barker J ordered that State of Western Australia pay the applicant’s costs of the proceeding following Balanggarra Aboriginal Corporation’s discontinuance of the proceeding.
Prior to the commencement of this proceeding, the State had asserted that the applicant could not lawfully carry out the Traditional Fire Project without first obtaining the permission of the Minister under the Land Administration Act 1997 (WA) (LAA) and the Land Administration (Land Management) Regulations 2006 (WA) (LM Regulations) failing which it was liable to be prosecuted. The Kimberley Land Council (KLC) queried on behalf of Balanggarra Aboriginal Corporation why additional authorisations would be required under the LAA and the LM Regulations given that permits had been issued under the Bush Fires Act 1954 (WA) (BFA).
The applicant filed an originating application seeking declarations to establish that the applicant and members of the Balanggarra community could carry out the Traditional Fire Project over the exclusive native title rights area without such permission, and an injunction restraining the State from bringing any actions under s 267(2) of the LAA or reg 14(1) or reg 17 of the LM Regulations. The originating application was accompanied by a statement of claim.
Soon after the proceeding was commenced, the State said that on the basis of the matters pleaded by the applicant, there was in reality no dispute between the parties, and that the applicant and members of the Balanggarra community were not liable to prosecution under the LAA or the LM Regulations. In light of the State’s stated position, on 27 March 2018, the applicant obtained leave from the Court to discontinue the proceeding, subject to its right to file any application for costs against the State by 4 May 2018.
The applicant has applied for costs under R 26.12 of the Federal Court Rules 2011 (Cth), submitting that it should be awarded the costs of the proceeding because:
the proceeding was precipitated by the State’s insistence that the carrying out of the Traditional Fire Project was unlawful without the permission of the Minister under the LAA and LM Regulations;
the State abandoned that position after service of the originating application, thereby effectively surrendering;
further, the State’s position before litigation was unreasonable; and
in any event, the applicant would almost certainly have succeeded in obtaining declaratory relief.
The State, in summary, submitted that no costs order should be made because:
even if it was to be accepted that the applicant may have succeeded in obtaining some form of declaratory relief, it cannot be said with any certainty that it would have been wholly successful in obtaining the declaratory and injunctive relief which was sought; and
the applicant’s commencement of this proceeding was not, in the particular circumstances of this matter, reasonable.
The applicant contended that the correspondence between the parties make it plain that the State’s insistence on permission being required under the LAA and LM Regulations precipitated the applicant’s decision to commence the litigation. When confronted with the originating application, the State accepted that such permission was not necessary, the Minister for Lands claiming that there was ‘no dispute’ between the parties as to the ‘ultimate relief sought’ namely, confirmation as to whether the applicant would be liable to prosecution under s 267 of the LAA and reg 14 and reg 17 of the LM Regulations.
The applicant alleged, as a matter of construction, s 267 did not impose restrictions on carrying out the Traditional Fire Project within the Reserve because the Reserve did not fall within the definition of ‘Crown land’ under the LAA: the Aboriginal Lands Trust held the land comprising the Reserve in fee simple. Further, the applicant alleged that reg 14 and reg 17 of the LM Regulations did not impose restrictions on carrying out the Traditional Fire Project because the LM Regulations applied to only three categories of land, namely, unallocated Crown land; unmanaged reserves; and Schedule 1 reserves. The Reserve did not fall within any of those categories.
The applicant notes that the State has not disputed any of these allegations; rather, it has stated in correspondence that, on the basis of the facts alleged in the originating application, neither s 267, nor reg 14 or reg 17 of the LM Regulations would apply to burning undertaken by the applicant or any Balanggarra person on the Reserve. That statement constituted an acceptance of the applicant’s case.
The applicant rejected the State’s submissions that the commencement of litigation was unreasonable because there was ‘no urgency or immediacy’ compelling the applicant to commence the proceeding when it did. The applicant submitted that s 267(2) of the LAA makes it an offence, punishable by a fine of up to $10,000, to do any of the things in that subsection without the permission of the Minister or reasonable excuse. A prosecution for an offence under s 267(2), moreover, can be commenced within 10 years after the date on which the offence is alleged to have been committed. Breaches of reg 14(1) and reg 17 are punishable by a fine of up to $1,000. The applicant further submitted that the proceedings were commenced during Yirrma, the traditional time when burning continues from the early dry season, which added to the urgency in resolving the dispute.
The State had stated, in correspondence from senior public officials and a senior solicitor, that s 267(2) of the LAA and reg 14(1) and reg 17 of the LM Regulations prohibited the applicant from carrying out the Traditional Fire Project without a deed of licence. The State’s position was that unless the State gave its permission, the applicant and members of the Balanggarra community would be committing offences by carrying out the project. The applicant considered it did not act unreasonably in commencing litigation to establish that no such offences had been or would be committed.
The State argued that given the change of government in Western Australia in March 2017 it could not have been expected that the Minister would have been in a position to make any necessary enquiry or obtain any relevant advice in relation to that issue by 30 May 2017, the day following the meeting with the KLC. The State rejected the applicant’ submission that the Court could be ‘confident that the applicant almost certainly would have succeeded’ in its claim, had it progressed to a final hearing. Having regard to the scope, complexity and novelty of the applicant’s originating application, the State said that submission could not be accepted. The State argued that even if it were to be hypothetically accepted that relief of some kind may have flowed, it cannot be accepted or determined that all of the claimed relief would have succeeded.
Rule 26.12 of the Rules provides that, unless the Court orders otherwise, a party who files a notice of discontinuance is liable to pay the costs of each other party to the proceeding. The Rule creates a presumption that a respondent to a discontinued application is entitled to their costs. The presumption, however, can be displaced if the discontinuing party shows the Court good reason not to award costs.
Barker J stated that it may be appropriate to award costs against a respondent if its conduct in precipitating or defending litigation was not reasonable; or if a judge is confident that the applicant was almost certain to have succeeded if a matter had been tried. The cases show that if discontinuance results from a party effectively capitulating or surrendering in the face of a claim made against it, then costs will usually be awarded against that party. See ONE.TEL at 553; Chapman at [7]; Binetter v Commissioner of Taxation [2015] FCA 645.
His Honour accepted at [73] the applicant’s submission that in order to obtain a cost order in this case it does not need to demonstrate that it would have succeeded in obtaining each of the nine alternative declarations that it claimed, as well as the injunction, in order to have succeeded for the purposes of obtaining a costs order following discontinuance of the proceeding. Barker J considered that all the applicant needs to show, in the circumstances of this case, is that it was entitled to so much of the relief as would have achieved its evident purpose.
Barker J found that the State capitulated on the substantive question as to whether, as a matter of construction, s 267 of the LAA and reg 14(1) and reg 17 of the LM Regulations applied to the carrying out of the Traditional Fire Project within the Reserve once the proceeding was commenced. His Honour also considered there are strong grounds to believe that, if the matter had gone to trial, it would have been found that the bulk of the land in question, that fell within the Reserve, did not fall within the definition of ‘Crown land’ under the LAA, and so was not subject to regulation under the LAA and the LM Regulations.
Barker J considered the State’s position to be that unless it gave its permission, the applicant and the members of the Balanggarra community would be committing an offence by carrying out the project: ‘In all of the circumstances, I do not consider that the applicant acted unreasonably in commencing the proceeding to establish that no such offences had been or would be committed by implementing its proposal’ at [78]. His Honour ordered that the respondent pay the applicant’s costs of the proceeding, to be assessed if not agreed.