North ACJ, Dowsett, Rares JJ
In this matter the Full Federal Court ordered that the appeal from Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 7) [2015] FCA 1404 brought on behalf of Oil Basins Limited (Oil Basins) be dismissed. The primary Judge also dismissed the application for review of the taxation of a bill of costs.
On 24 February 2014, Gilmour J made orders in favour of the respondents who were the applicant in a claimant application for a determination of native title under the Native Title Act 1993 Cth (NTA). His Honour ordered that Oil Basins pay the respondent’s costs of the interlocutory application dated 6 May 2013 on an indemnity basis. On 17 November 2014, the costs orders were confirmed on appeal: Oil Basins Limited v Watson [2014] FCAFC 154. On 22 May 2015, Registrar Trott taxed the respondent’s bill of cost and signed a certificate in the sum of $161,248.23. On 17 June 2015 Oil Basins filed the application for review of the taxation under r 40.34(2) of the Federal Court Rules 2011. On 2 October 2015 Oil Basins filed an amended application for review of the taxation.
The Kimberley Land Council (KLC) as the Native Title Representative Body (NTRB) for the region was the respondent’s solicitor on the record.
In the proceedings before Gilmour J, Oil Basins had argued that the KLC were not entitled to charge legal fees. In his reasons for judgment Gilmour J referred to the judgment of Mansfield J in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 (Far West Coast). In that matter the applicant for a native title determination sought costs of certain interlocutory applications against a Mr Robert Victor Miller. Mr Miller argued that South Australian Native Title Services (SANTS) was an NTRB funded by the Commonwealth for its functions and it could not charge the applicant for its services. Mansfield J made an order that Mr Miller pay the applicants’ costs on a party and party basis save for the disbursements already incurred by the applicant which had already been incurred on an indemnity basis. Mansfield J explained that the NTRB was entitled to charge for providing legal services as a consequence of its statutory functions, that the applicant although not expecting to pay these costs, may have such a liability as a result of the relationship between the applicant and the representative body at [13]. Gilmour J applied Far West Coast to reach his conclusion that the respondents were entitled to be indemnified.
In these proceedings North ACJ, Dowsett and Rares JJ said that a NTRB such as the KLC has statutory facilitation and assistance functions under s 203BB(1) of the NTA. In performing those functions in relation to an application under s 61 of the Act, an NTRB must act in a way that promotes an orderly, efficient and cost effective process for making such applications pursuant to s 203BC(3) at [18]. The Secretary of the Department administering the Act on behalf of the Commonwealth provides funds to NTRBs so that it can carry out its functions. The Court found that the situation in this matter was most closely analogous to when a Minister is represented in his or her official capacity by a solicitor or lawyer acting for the Crown.
The Full Federal Court found that Ms Cole was the solicitor on the record and even though employed by the KLC, the KLC had incurred costs (that it paid from money granted to it) through her acting and retaining counsel in the proceedings in which Oil Basins was ordered to pay costs.
Oil Basins challenged the existence of a retainer and alleged that the respondents were never expecting to receive a bill of costs. However in applying Far West Coast Gilmour J did not make any specific findings of fact on that issue and proceeded on the basis that no such concession had ever been made and that the respondents should never expected to have received a bill of costs. The Court further stated at [39] that: ‘A party that challenges the existence of a retainer bears the onus of establishing its absence’.
The Court found that there is a strong presumption arising that a solicitor has a contract of retainer with the person who is the party for whom the solicitor appears on the record of proceedings. A solicitor who acts on instructions for party on the record is presumed to be entitled to look to that party for costs.
In the result Oil Basins did not discharge their onus of proof in establishing that the respondents had made a concession that they would not be liable to pay legal costs incurred by the KLC in representing them in the interlocutory applications the subject of the order of Gilmour J. As that was the only basis upon which the appeal was argued, the appeal failed on the narrow evidentiary basis on which it was brought at [43].
The NTA recognises that Aboriginal and Torres Strait Islander peoples will often need and should have entitlements to financial and other assistance in bringing their claims under the Act. One thing that is clear in the Act is that it does not presume that Indigenous peoples are necessarily indigent or without the financial capacity to retain lawyers for valuable consideration payable by them to those lawyers to make claims under the Act.
The Full Court stated at [46]-[47] that: ‘Rather the Act in s 85A(1) provides a presumption that each party to proceedings under the Act ‘must bear his or her own costs’. If Oil Basins’ argument were correct, namely that in circumstances where a representative body such as the KLC undertook the function under s 203BB(1)(b) of representation of persons in proceedings relating to a native title application, the presumption in s 85A(1) would be misconceived. That is because one party namely the person or person who held or claimed to hold native title would never bear his her or their own costs as they would never be liable for such costs in the first place. It follows that the appeal is dismissed’.