Part Two: … and a crocodile called Elvis.
By Bob Gosford
In the first part of this seriesI looked at the recent Federal Court decision of Justice Charlesworth in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] (Munkara) and briefly explored the judicial history of principles concerning Aboriginal decision-making as they have been considered by Northern Territory and Federal courts.
Another aspect of Munkara worth a closer look is the apparent failure of the Tiwi applicants’ lawyers to consider, identify and apply well-known principles of Aboriginal decision-making and the potential costly consequences of this failure.
Justice Charlesworth made the usual orders with regard to costs, namely “ … the applicants are to pay the respondent’s costs, such costs to be assessed … on a lump sum basis.”
This has caused a minor stir in Top End legal circles, not least because the Tiwi applicants, Simon Munkara, Maria Tipuamantumirri and Carol Puruntatameri, are very likely to have insufficient funds or resources to meet the considerable costs Santos is entitled to by the judgement.
Santos is keen to build and maintain good relationships with the Tiwi and other coastal communities on the mainland—see for example the recently announced $100m ‘Aboriginal future fund’—and to get onto the front foot in dealing with the outstanding costs issues.
A week after the judgement lawyers for Santos filed five requests for subpoenas. This was followed a week later—at 3pm on Tuesday 30 January—by Justice Charlesworth issuing orders granting Santos leave to issue the subpoenas as requested.
Santos’ lawyers were very quick off the mark and two hours and eleven minutes later they filed ten subpoenas to produce documents.
The targets of the subpoenas appear to include the three Tiwi applicants, one of whom at least has evidently filed an objection to the subpoena. At present we can only speculate about the other recipients.
On the first day of February Santos Chief Executive Officer Kevin Gallagher held a press conference in Darwin in advance of his speech to an NT Energy Club lunch the following day.
Among other matters—railing against “misguided activism,” Santos’ $100 million Aboriginal “future fund” supporting coastal communities and the opening of a Santos shopfront in the Darwin CBD—Gallagher told the media that Santos wouldn’t be pursuing the individual Tiwi applicants for costs.
When asked if Santos would seek costs from the Environmental Defenders Office (the EDO), (who represented the Tiwi applicants) Gallagher responded: “That will become evident in time. We’re working through those processes just now with the court“.
As with the targets of the subpoenas, we can only speculate who Santos will be pursuing for their costs—though there is no shortage of speculation around Darwin.
Noting the stinging criticism levelled at various participants by Justice Charlesworth it is useful to consider how costs might be allocated in other than the usual manner.
Section 37M of the Federal Court of Australia Act (the FCA Act) establishes that an “overarching purpose” of the Court Rules is to facilitate the just resolution of civil disputes according to law and as “quickly, inexpensively and efficiently as possible.”
Section 37N requires that Parties to a civil action must conduct the proceeding consistent with the overarching purpose. Subsection 37N(3) requires that when awarding costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed.
Section 43(3) and (3)(f) respectively of the FCA Act provide that the Court may act with unlimited discretion and may order a party’s lawyer to bear costs personally.
When Kevin Gallagher told media gathered in Darwin on 1 February that Santos was “working through those [costs] processes just now with the court” none of the gathered media appear to have followed through to check on Court filings by Santos. If they had, they’d know the documents sought by the Santos subpoenas are due to be provided to the Court by 10am tomorrow, Monday, 19 February.
In a late-breaking development, at 7pm on St Valentines Day, the Tiwi applicants filed an interlocutory application seeking to set aside the subpoena served upon them.
The following day Justice Charlesworth made Orders that in addition to the return of subpoenas as previously scheduled, she will conduct Case Management and Interlocutory hearings tomorrow morning.
Watch this space…
- The Northern Myth approached the EDO and Santos for comment. The EDO provided copies of the four statements it had issued since the judgement was delivered on 15 January 2024.
