Barker J
In this matter, Barker J dismissed an application brought by Oil Basins for a reduction or permanent stay of orders awarding costs to the Nyikina Mangala People. The respondents to the claim included the State of Western Australia and Oil Basins Ltd (Oil Basins). The Nyikina Mangala People were represented by the Principal Legal Officer of the Kimberley Land Council (KLC).
Background
In February 2014, Gilmour J ordered Oil Basins to pay the Nyikina Mangala People’s costs on an indemnity basis of an interlocutory application and any costs thrown away due to Oil Basins changing its position on the issue of connection.
The costs orders were confirmed on appeal, see Oil Basins Limited v Watson [2014] FCAFC 154, and the Deputy District Registrar taxed the Nyikina Mangala People’s costs at $161,248.23. Oil Basins sought a review of this decision.
Two questions relating to costs arose in this case
Is Oil Basins liable to indemnify the claimants in respect of any costs?
Should the travel allowances, and flights and accommodation expenses allowed by the registrar be disallowed?
Question One
The case concerned the application of s 85A of the Native Title Act 1993 (Cth)(NTA) which allows the court to order one party to pay the other party's costs if those costs were incurred as a result of any unreasonable act or omission.The primary argument made by Oil Basins was that because the claimants had no liability to pay their lawyer for costs incurred, and in fact did not pay costs at all, there was nothing to indemnify. Oil Basins also argued that the KLC was prohibited from providing legal services and if the Principal Legal Officer of the KLC was permitted, it could only be on a not-for-profit basis and no fee was chargeable. The claimants relied on Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 (Far West Coast No. 8) in support of the proposition that the claimants were entitled to claim costs even though they may not have expected to be liable to pay costs because underlying the relationship with KLC was an understanding that such a liability may exist.
Barker J considered the judgement and reasoning of Mansfield J in Far West Coast No.8 and concluded that a Native Title Representative Body (NTRB), having regard to the objects of the NTA and the particular functions given to a NTRB by the NTA, is analogous to the Crown and its legal officers, in which a successful party is not disentitled to costs merely because they are not personally liable to the Crown solicitor for costs. The relationship is such that there is an underlying understanding that such a liability may exist. The costs regime would effectively apply in one direction if an NTRB is unable to seek a costs order when successful but is exposed to an adverse costs order if the NTRB is unsuccessful. This outcome is clearly not what s 85A of the NTA contemplates. For these reasons, Barker J rejected Oil Basins’ application on this point.
Question Two
Oil Basins challenged 7 travel allowance items totalling $2,184.50, contending that remittance advices had been provided where invoices or receipts were required. The remittance advices did not reveal what the claim was for. However, Barker J determined that it was sufficiently clear from the affidavit evidence that the payments made were travel allowance payments.
Oil Basins challenged 5 items in respect of flights and accommodation totalling $2,905.54, of which $2,641.41 was allowed by the registrar. Oil Basins submitted that the Nyikina Mangala People's solicitor unnecessarily flew to a directions hearing and hearing of an interlocutory application when she could have attended via telephone. Barker J ruled that the registrar’s exercise of discretion on these expenses was not ‘manifestly wrong.’
His Honour rejected all of these objections.