McKerracher J
In this matter the Court considered a costs application by the Mirning Applicant native title group following an unsuccessful application by a member of the native title applicant group, Mr Robert Claude Lawrie, for a declaration that Campbell Law have been appointed as the solicitors for the Mirning Applicant.
The Mirning Applicant filed affidavits and submissions opposing the application. The Commonwealth of Australia and the State of Western Australia also filed submissions opposing the application.
Several exchanges occurred and Mr Lawrie later accepted that his application should be dismissed by consent. The Court accordingly dismissed the application and permitted the parties to make submissions on costs.
Mr Lawrie opposed the application for costs on the following grounds:
the only reason Mr Lawrie consented to the dismissal of his interlocutory application was because an agreement was made that a claim group meeting would be held to replace and reauthorise the named individuals;
Goldfields Land and Sea Council (GLSC) was not authorised to seek costs;
Mr Lawrie's application was not unreasonable; and
It would be inappropriate to make a costs order because Mr Lawrie is a member of the Mirning Applicant, a claim group and a Mirning elder, his application was supported by 2 other members of the Mirning Applicant and Mr Lawrie is a pensioner and not in a position to pay costs.
The Court held that it is a part of the usual retainer of a legal representative to seek costs in a proceeding that was misconceived and without merit. It was not necessary for the GLSC to seek specific cost recovery instructions from the claim group because the claim group has already provided instruction to GLSC to protect its interests.
The Court noted that it was difficult to see how Mr Lawrie's reliance on a proposed claim group meeting was relevant a because the submissions demonstrated that his interlocutory application could not succeed. The fact that Mr Lawrie's conduct was not obviously unreasonable was irrelevant. It was the making of the application and the failure to pursue it which meant that costs should follow the event.
Finally, the Court held that Mr Lawrie's financial position (a pensioner with little money) was not a proper basis for refusing to make the usual order as to costs.
Orders
The interlocutory applicant, Mr Robert Claude Lawrie, is to pay the Mirning Applicant’s costs of the interlocutory application dismissed on 9 April 2013.