Barker J ordered that the Indigenous respondents to the Kariyarra native title application (WAD 158 of 2018) pay the costs of the applicant in that proceeding (and the respondents to the leave application: the Kariyarra respondent) fixed at $16,500.00.
In Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430 the applicants, and the party referred to in the judgment as the Indigenous respondents, were found to hold the communal rights comprising native title together; and the contention of the applicant in that proceeding, the Kariyarra respondent, to the effect that the Indigenous respondents were not part of the native title holding group, was rejected; as was the contention of the Indigenous respondents that they, and they alone, held the native title.
The Indigenous respondents then sought an extension of time and leave to appeal from that order. The leave application was listed for hearing, together with the appeal if leave was granted, before the Full Federal Court on 24 August 2018. The Kariyarra respondent opposed the leave application. On 21 August 2018 the Indigenous respondents, as applicants on the leave application, withdrew the leave application. The Kariyarra respondent made an application seeking its costs of the leave application.
The Indigenous respondents submitted that their counsel was unavailable for the hearing of the leave application and when the request to adjourn the hearing was unsuccessful, the applicants gave notice they would not proceed with the application and filed the formal notice of withdrawal. They argued that the submissions settled by Mr Robinson SC confirm that the applicants had legitimate points to raise, which they should not be punished for, or deterred from, by way of a costs order; Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163 ; 199 FCR 23 at [9].
The Kariyarra respondent argued that before the Indigenous respondents filed their withdrawal notice under R 35.31(1), the Kariyarra respondent told them that it would be seeking costs and the approximate amount of the costs. It submits that if the Indigenous respondents did not want to be subject to R 35.31(4), then the appropriate action was for them to ask for a hearing and seek an order that costs not apply, but they did not do so.
Barker J stated at [29]: ‘It is not good enough for the Indigenous respondents simply to advert to the fact that senior counsel then briefed was unable to appear and to say that they were advised to withdraw the leave application. As I have intimated, that is a somewhat remarkable course of events for a party who has commenced such an application, apparently on the basis of serious concerns to them, to take.’ His Honour held that the withdrawal of the leave application by the Indigenous respondents was, in all the circumstances, unreasonable conduct within the meaning of s 85A of the Native Title Act 1993 (Cth) and ordered the Indigenous respondents to pay the Kariyarra respondents’ costs.