This proceeding concerned an interlocutory application to fix the quantum of the costs payable by the respondents Mr Larry Woosup and Ms Beverley Tamwoy at $197,897.49. The application was made pursuant to Order 7 of orders made by the court on 7 December 2017 in Gebadi v Woosup [2017] FCA 1467. By these orders the respondents were ordered to pay the costs of the applicants of and incidental to the proceedings including reserved costs.
The principal proceeding was brought by Mr Mark Gebadi, Ms Tracey Ludwick, Ms Catherine Salee, Mr Benjamin Tamwoy, Mr Asai Pablo, Mr Charles Woosup and Mr Nelson Stephen in a representative capacity on behalf of the Ankamuthi People. These applicants are seven of the ten applicants who maintained proceedings on behalf of the Ankamuthi People as a native title claim group, by which they sought a determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth). In this proceeding declarations were made that the respondents had breached the duties they owed to the Ankamuthi native title claim group.
In the present proceeding the applicants sought an assessment of costs on a party and party basis, not on an indemnity basis, and his Honour found it ‘perfectly proper’ to order that the respondents pay costs in the quantum as assessed. At [7] Greenwood J states, ‘The fundamental matter is that the applicants were put to the difficulty of preparing and prosecuting to judgement a proceeding in which they sought to vindicate the rights that were ultimately shown to be well-held and well-asserted. At any moment in time, Mr Woosup and Ms Tamwoy could have accepted the propositions put to them and could have accepted orders that they account for the monies which had been received as described in the course of the reasons for judgment, however, they chose not to do so. They chose to have their day in court, and they chose to put the applicants to the cost and expense of vindicating their position.’ His Honour ordered that the costs subject to the previous order be fixed at $197,897.49.