Behrendt, Jason --- "Narromine Local Aboriginal Land Council v The Minister Administering the Crown Lands Act" [1993] AboriginalLawB 35; (1993) 3(63) Aboriginal Law Bulletin 18

• Narromine Local Aboriginal Land Council V The Minister Administering The Crown Lands Act

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Narromine Local Aboriginal Land Council v The Minister Administering the Crown Lands Act

Land and Environment Court of New South Wales

[1993] NSWLEC 34 (16 April 1993)

Stein J

16 April, 1993, Unreported.

by Jason Behrendt

This case involved a motion by the Minister Administering the Crown Lands Act that Narromine Local Aboriginal Land Council (LALC) pay costs for a discontinued appeal over the refusal of a land claim. The refusal had been on the grounds that the land was not claimable Crown land on the basis that it was needed for an essential public purpose and it was lawfully used and occupied [s36 (1) (b) and (bi)).

Narromine LALC lodged the appeal on 2 November 1992. The Appeal went before the Registrar on 1 December 1992 where directions were given that the respondent Minister produce documents by 16 December 1992 and that the respondent file and serve affidavits by 15 February 1993. The applicant LALC was to do the same by 15 March 1993.

The affidavits concerned the issue of land use and pointed towards the land being needed for an essential public purpose. The Minister followed both the orders made by the Registrar.

Narromine LALC filed a notice of discontinuance of the appeal on 15 March 1993.

The Minister claimed costs incurred from 1 January 1993 to the date of discontinuance.

This was the first time that a motion for costs had been brought by the Minister over an appeal under the NSW Aboriginal Land Rights Act 1983 ('ALR Act') under these circumstances.

The Respondents relied on the Court's discretion inherent in s69 of the Land and Environment Court Act 1919 (NSW), Part 11 Rule 7 of the Court Rules and the fact that there had been no misconduct on behalf of the respondent in the claim for costs. They further submitted that Narromine LALC should have been able to determine their position upon discovery on 16 December 1992.

Narromine LALC in response argued that Part 11 Rule 7 of the Court Rules was inappropriate and argued that because of the inchoate property rights involved and the benefical and remedial nature of the ALR Act, the LALC had a duty to its members to proceed carefully before abandoning such rights. The LALC argued that until the merits of the Minister's case were disclosed in the affidavits they could not reasonably consider their position.

Stein J rejected the Motion. He suggested that there is a need for better procedures and communication between the Minister and Aboriginal Land Councils so that needless litigation is not initiated (at p.6), this was particularly so because of the information disadvantage in which Land Councils often find themselves.

Stein J, after considering the nature of land rights apeals, and the benefical and remedial intentions of the Act, came to the conclusion that it was inappropriate for the Court to form the opinion that, in the ordinary course of ALR Act appeals, no orders for costs ought be made whatever the result. However, he held that costs would not be awarded "in the absence of exceptional circumstances which may concern the conduct of a party to the litigation." (at p.9)

He held that in the present case there were no such exceptional circumstances to justify the awarding of costs against Narromine LALC.

The Motion was dismissed.