In this matter, Robertson J ordered that each party bear their own costs of the dismissed interlocutory application and the applicant pay the costs of the Current Applicant, if any, thrown away by reason of amendments.
This case concerns an interlocutory application dated 13 February 2018, which was dismissed on 18 July: see Boney v Attorney General of New South Wales [2018] FCA 1066. This reasons are to be read together with that decision. Robertson J granted leave to amend the application for leave to appeal and the draft notice of appeal on that day. The interlocutory application dated 13 February 2018 was dismissed, without prejudice to the Current Applicant, raising the issue of the 14 applicants’ standing and the futility of the application for leave before the Full Court hearing the application for leave to appeal, and if leave be granted, the appeal. His Honour also made orders for the filing of short written submissions on the issue of costs.
The parties to this current proceeding are the 14 persons who are applying for leave to contest the interlocutory judgment of Rangiah J in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464, referred to as ‘the applicant’. Also a party is the respondent to the application, who brought the previous interlocutory application on 13 February 2018, referred to as ‘the Current Applicant’.
The Current Applicant submitted that where a party sought an indulgence, it was usual for the party to pay the costs of the application. That included costs thrown away by amendment. The Court has jurisdiction to award costs against a successful party, including where the successful party had committed disentitling conduct or where one party had sought the indulgence of the Court. The Court’s discretion was enlivened where a party had engaged in conduct that encouraged the other party to believe they had a valid claim to relief. The Current Applicant submitted that it should be awarded costs under s 43 of the Federal Court of Australia Act 1976 (Cth) for two reasons:
The interlocutory application not ‘unsuccessful’; but rather the issues that were raised either fell away due to late amendments or remain unresolved.
The applicant only sought to amend its leave application during the hearing of the interlocutory application on 13 June 2018, despite the Current Applicant, from the 27 December 2017, putting the applicant on notice of deficiencies in its leave application, to which it never responded. The Current Applicant submitted that there were extensive attempts to correspond via both email and letters with the applicant, and that no substantive response was received. On the 13 February 2018 the current applicant filed and served the interlocutory application and supporting application.
The applicant submitted that the amendments to the leave application were not an indulgence, as they were not the correction of a unilateral or one-sided error, but rather constituted a ‘shared misapprehension’ that the persons comprising the Former Applicant retained their corporate or quasi-corporate status even once removed as an applicant by order under s 66B of the Native Title Act (at [10]). That the arguments of the Current Applicant ‘fell away’ was a product of this misapprehension being corrected, and those that were unresolved were because the Current Applicant brought them at the incorrect time or place.
The applicant also submitted that it was presently impossible to ascertain the correctness of either the standing argument or the futility argument, and it was therefore difficult to assess the reasonableness of advancing those arguments. The applicant assumed that those arguments would be re-run before the Full Court, and so any preparatory costs would not be wasted. For those reasons, the costs of those arguments should be reserved to the Full Court.
Robertson J ordered that each party should bear its own costs of the interlocutory application. It was held that the conduct of neither parties was considered unreasonable. The argument of the applicant to reserve part of the costs to the Full Court was rejected.
Regarding the costs of the amendments, it was ordered that the applicant pay the costs, as it was an ‘indulgence sought by and granted to the applicant’ (at [20]). No separate order was made in respect of the costs of the submission on costs.