This case concerned orders as to costs following the striking out of a native title compensation application.
Background
The native title compensation application, brought by the Bigambul people, was struck out in Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190 (‘Bigambul (No 2)’) for failure to identify any particular compensable acts.
Orders Sought
In Bigambul (No 2), the State of Queensland sought an order that the State’s costs be paid by the applicant’s solicitor personally, but in this case submitted that there should be no order as to costs. This was accepted by the applicant. The second respondent, Queensland South Native Title Services (QSNTS) sought an order that the applicant’s solicitor pay QSNTS’s costs. The remaining respondents (four Bigambul persons and the Bigambul Native Title Aboriginal Corporation RNTBC) sought an order that the applicant pay their costs on an indemnity basis and that ‘the [a]pplicant’s lawyer’ pay these costs personally.
The applicant opposed the orders sought by QSNTS and the Indigenous respondents.
Submissions
In seeking an order for costs against the applicant’s solicitor, the respondents relied on s 37N(4) of the Federal Court of Australia Act 1976 (Cth) which allows a judge awarding costs to take into account failure of a party to comply with their duty to conduct proceedings in a way that is consistent with the overarching purpose of the proceedings. Those respondents alleged that the Form 4 application filed by the applicant was clearly defective and that the applicant’s solicitor acted unreasonably and without proper consideration of the applicant’s prospects of success in continuing to prosecute it after the first case management hearing.
Decision
His Honour described the conduct of the applicant on his solicitor’s advice as ‘unreasonable’ and described the solicitor’s advice as ‘unreasonable and unprofessional’. However, His Honour found that the unreasonable conduct persisted only until the first case management hearing. On that basis, given that QSNTS and the remaining respondents were not parties at that time, His Honour said it was not appropriate to order the solicitor pay their costs. As a result, the Court maintained the default position under s 85A(1) of the Native Title Act 1993 (Cth) for each party to bear their own costs. His Honour did, however, comment that if the State had not withdrawn its submission for its costs to be paid by the solicitor, he would have been inclined to make that order.