Barker J
In this matter the Court ordered Ms Joan Ashburton and Ms Sandra Hayes (joinder applicants) to pay the costs of Yamatji Marlpa Aboriginal Corporation of responding to an unsuccessful application to be joined to the proceedings as respondents.
Background
On 19 August 2015, the joinder applicants, members of the claim group on whose behalf the native title claim had been brought, applied to be joined as respondents to the proceedings. Barker J dismissed the joinder application 27 August 2015 (Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964).
Should the joinder applicants pay the applicant's costs?
Section 85A of the Native Title Act 1993 (Cth) (NTA) gives the Court a discretion to order costs against a party where the Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the proceeding.
The applicant argued that:
on a literal reading, s 85A does not apply to the joinder applicants because they are not parties but argued that the principles generally applicable to s 85A should be applied.
the interlocutory application was unreasonable because:
it was made late, and shortly before the proposed consent determination.
it was brought notwithstanding the fact that it lacked any real merit and the applicants were represented by solicitors and counsel, so ought to have known better.
the dispute had a largely historical element to it and the proposed consent determination obviated or responded to the concerns of the interlocutory applicants.
It was unreasonable for the interlocutory applicants to use the Court process to seek to agitate their views when they had, but did not take up, the opportunity to agitate those views as part of the extensive claim group authorisation processes leading up to the proposed consent determination.
In resisting the orders, the joinder applicants argued that:
the ordinary costs order should apply and each party should bear their own costs.
the application was sincerely and genuinely made for the purpose of seeking to ensure that the terms of the then proposed consent determination and properly reflected the traditional laws and customs of the Kurrama and Pinikura people.
They considered that the consent determination ought to provide for a Kurrama prescribed body corporate over Kurrama land, rather than the proposed approach seeking to have Kurrama land controlled by the land committee.
the terms of the consent determination is a matter on which reasonable minds may differ and must be tailored to the relevant traditional laws and customs, as suggested by Beaumont and Von Doussa JJ in Western Australia v Ward and Others [2000] FCA 191; (2000) 99 FCR 316 at [205].
His Honour held that the conduct of the joinder applicants in bringing their application at the eleventh hour before the proposed consent determination in this proceeding, should be seen as an unreasonable course of conduct that justifies an award of costs under s 85A(1) of the Act.
Barker J considered that the issues raised by the joinder applicants had been resolved well before the joinder application was made, and further that the applicant had performed the duties required of it, meaning the joinder application lacked merit. His Honour considered that the strong views held by the joinder applicants about the consent determination were not to the point, given the decision making processes that had occurred prior to the decision to consent to the proposed determination.