Logan J
In this matter the Court dismissed applications for indemnity costs brought by Queensland South Native Title Services (QSNTS), the Wulli Wulli People and the Wakka Wakka People against the Djaku:nde People and personally against the solicitor of the Djaku:nde People.
Background
On 8 December 2014, seven individuals filed an application for native title, under s 61(1) Native Title Act 1993 (Cth) (the NTA) on behalf of a native title claim group comprising the Djaku:nde People.
The application related to a large swath of land lying to the west and south west of the towns of Murgon, Gayndah and Mundubbera and includes the Cherbourg Aboriginal Reserve. This claim area overlapped four existing land claims; one by the Wakka Wakka People and three by the Wulli Wulli People.
On 12 December 2014, the Wakka Wakka People and the Wulli Wulli People were joined as respondents. QSNTS was also joined as a respondent, both in its capacity as a representative body and as the representative of the Wakka Wakka People.
On 20 and 23 January 2015 respectively, the Wulli Wulli People, the Wakka Wakka People and QSNTS filed applications for summary dismissal of the Djanku:nde application.
On 30 January 2015, the Native Title Registrar found that the Djaku:nde People’s application for native title should not be registered.
On 6 February 2015 the application was dismissed at the request of the Djanku:nde Applicant.
Orders sought
QSNTS sought orders for indemnity costs against the Djaku:nde Applicants' solicitor or the Djaku:nde Applicant to pay the costs on a party and party basis. The Wulli Wulli People and the Wakka Wakka People each sought orders for indemnity costs against the solicitor of the Djaku:nde People and the Djaku:nde Applicant or any orders that the Court deemed appropriate.
The State of Queensland did not seek any order for costs.
Discretion to award costs- Legal Framework
At [12] Logan J considered the discretionary power of the court to award costs under s 43 Federal Court Australia Act 1974 (Cth) (the FCA) and noted that the discretion was affected by s 85A(1) NTA, which requires that each party bear their own costs unless ordered otherwise and s 85A(2) which permits the court to order a party to pay another party’s costs, if satisfied that the costs were caused by any unreasonable act or omission.
Logan J considered the meaning and effect of s 85A NTA and how that section interplays with s 43 of the FCA:
Section 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the FCA .
The “unreasonable conduct” of the parties is not a jurisdictional fact which preconditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1) of the NTA.
Whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs.
It is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would be applicants, as observed in Reid v State of South Australia [2007] FCA 1479 at [54].
Logan J also considered ss 37N and 37M of the FCA and the obligation to conduct civil proceedings in a way that is consistent with the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible, including resolution by negotiation if possible.
Logan J observed at [48] that none of the applicants had submitted that the Djaku:nde Applicant had any ulterior motive in bringing their native title application, perhaps in the nature of a specious, “spoiler” application, made late and certainly long after the end of the notification periods with the design of disrupting the orderly progress of the claims made by them towards consent determination or trial.
Registration of Native Title Applications - Implications
Logan J noted at [27] that the Native Title Registrar is obliged under s 66(3) NTA to give notice to any registered native title claimants if an application for native title is made in relation to any or all of the claim area. However, that notice will be given after the Native Title Registrar has made a decision about whether or not to register a claim.
At [28] Logan J explained:
By sequencing the obligation of the Court’s registrar to give the notice to the classes of person specified in s 66(3) to a time as soon as reasonably practical after the making by the Native Title Registrar of the registration test decision, s 66(6) evinces an intention that, until that decision, that class of potential respondents ought not to be put to the time, trouble and expense of having to react to a native title application and also that the public purse ought not be diminished by the expense entailed in identifying each of those entitled to notice and notifying them.
The Court explained at [29]-[30] that s 66(4) NTA provides the relevant State with an opportunity, prior to the registration test, to make a submission to strike out (or otherwise), if there is a need.
The State chose not to bring a strike-out application. Instead it made submissions to the Native Title Registrar that the Djanku:nde claim was not one for registration. His Honour agreed with this approach and concluded at [73]:
Though I might have wished for submissions from the State on matters of practice and procedure, I regard the conduct of the State in the circumstances of this case as responsible and well-befitting a model litigant. Rather than bringing a potentially unnecessary strike out application, it has subjected the native title application to objectively detached analysis and then chosen to make a considered submission to the Native Title Registrar as to whether the claim in it meets the registration test. This is a course expressly envisaged by the Native Title Act. By adopting it, the State chose a course which potentially and in this case in fact avoided the expenses of litigation associated with a strike out application, the hearing of which might have proved to be unnecessary.
His Honour observed at [69] that, the strike out applications were permissible but neither was made by a party expressly contemplated by the Native Title Act as one who might bring such an application prior to the registration test stage.
Decision
In dismissing the costs applications, his Honour concluded at [72]:
I am firmly of the view that the Djaku:nde Applicant acted as soon as reasonably possible to bring these proceedings to an end. I am likewise of the view that Mr Hwang did all that might reasonably have been expected of a legal practitioner, in the circumstances described, to achieve that end. I am also firmly of the view that the costs of and incidental to the striking out applications and the preceding joinder were prematurely incurred by QSNTS and the Wulli Wulli and the Wakka Wakka Peoples. Because of that, even if I were otherwise disposed to regard the conduct of the Djaku:nde Applicant as warranting a departure from the usual expectation in a native title case (and I am not), I would not award costs in respect of these matters. And the same would apply even if I were to regard Mr Hwang’s conduct as otherwise warranting the course of awarding costs against him personally.