This costs order followed an unsuccessful application by Ms Stuart, a member of the Adnyamathanha applicant, to be heard as amicus curiae (a non-party ‘friend to the court’). White J ordered that both Ms Stuart and her solicitor bear the costs of the other parties to the application.
The matter concerns the native title claims by the Adnyamanthanha People, Ngadjuri Nation and Wilyakali Peoples which varyingly overlapped in east South Australia. Negotiations of the groups with the State occurred for consent determination purposes. Ms Stuart comprised part of the Adnyamathanha applicant since 2003, wished to cease the consent determination, and have an opportunity to express her dissent. Mr Campbell advised Ms Stuart to make the application, despite not being Ms Stuart’s solicitor for the claim and having previously and unsuccessfully applied for amicus status for another member of the applicant. Ms Stuart was refused amicus status, largely due to the late application and that the status is only given to non-party, neutral persons.
Costs paid by the applicant
Section 85A of the Native Title Act 1993 (Cth) provides parties in native title proceedings pay their own costs, unless otherwise ordered or if costs are unreasonably incurred. White J held Ms Stuart was to pay the costs of the three applicants on a party/party basis, as the application was unreasonable given her agreement to act as named applicant for the Adnyamanthanha People and her decision to file the application three days before the determination was scheduled.
Costs paid by the solicitor
Both the applicants and the State contended that Mr Campbell should also be liable to costs. Although uncommon, White J ordered that Mr Campbell also pay the costs of the three applicants and the State on a party/party basis. His Honour held that advising the amicus application was not the act of an ordinarily competent solicitor. Mr Campbell had failed to properly disclose to Ms Stuart the potential costs, other more suitable alternatives, and the low prospects of success of the application.