Collier J
In this matter, the Court considered an application by the successful respondents to an interlocutory application for an order that the Queensland South Native Title Services (QSNTS) pay their costs ($30,970) of responding to certain affidavits filed in the interlocutory proceedings.
Background
The background to the original dispute is set out in the judgement: Anderson v Queensland [2011] FCA 1158. After being successful in that action the respondents indicated that they would be seeking a costs order against the legal representative of the unsuccessful applicants, QSNTS, rather than the unsuccessful applicants themselves.
Consideration
Collier J considered the Court's jurisdiction to award costs and the submissions of the respondents that Counsel acted “for QSNTS”, that factual issues were “raised by QSNTS” or that there were “QSNTS affidavits”.
The Court concluded that:
the respondents' submissions are not substantiated;
there was no evidence that QSNTS abused or used the Court process for improper or ulterior purposes;
apart from sweeping claims relating to alleged actions of QSNTS there was no claim made or material before the Court to support a finding that QSNTS is a party to the proceedings for the purpose of s 85A of the Native Title Act 1993 (Cth) (NTA); and
s 85A of the NTA did not support an order that QSNTS pay the costs because, although the respondents made a general claim that the applicants engaged in unreasonable acts and omissions, the respondents deliberately refrained from pursuing the applicants for costs and no case was advance to support a finding that QSNTS should be required to pay those costs.
Orders
The interlocutory application filed 14 October 2011 be dismissed.