McKerracher J
This matter concerned an application for indemnity costs by the Mirning Applicant native title group in relation to an unsuccessful interlocutory application brought by Mr Michael Alfred Laing to be joined to the proceedings. See related content: A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 ). Justice McKerracher stated that the reasons for his decision on costs should be read in conjunction with this decision.
Justice McKerracher considered the unexplained late filing of the ancillary application by Mr Laing was unreasonable within the meaning of s 85A(2) of the Native Title Act 1993 (Cth) for the following reasons:
Mr Laing failed to provide adequate evidence in support of his ancillary application;
Mr Laing sought relief that did not allow for any male member of the Mirning Applicant or claim group to attend the proposed restricted hearing, to read the manuscript, to allow for instructions to be sought or for evidence to be obtained from male members of the Mirning Applicant or claim group in response;
Mr Laing sought to present gender specific evidence that would have excluded both counsel and instructors for the Mirning Applicant; and
Mr Laing gave no detail as to the broad substance of the proposed restricted oral evidence, placing the Mirning Applicant in an almost impossible position.
Mr Laing's distress and lack of trust was not adequately substantiated and was provided much too late.
Justice McKerracher did not consider indemnity costs appropriate because Mr Laing's application was not so manifestly hopeless that it could never have been accommodated, provided suitable arrangements for costs in favour of the Mirning Applicant on an inevitable adjournment were made.
On balance, the Court concluded that Mr Laing should be required to pay two-thirds of the Mirning Applicant’s costs of responding to Mr Laing's application.
Orders
Mr Laing to pay two-thirds of the Mirning Applicant’s costs on the ancillary interlocutory application, to be taxed if not agreed.