2 April 2021
What you need to know
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In the native title jurisdiction the general position remains that each party must bear its own costs.
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However, applications for costs orders by and against native title parties are becoming increasingly common.
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Recent case law shows that the Federal Court retains a broad discretion to award costs and will do so where it sees unreasonable conduct and potentially in other circumstances.
What you need to do
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Be reasonable! Courts will respond to grandstanding or pursuit of pointless arguments with costs orders.
For many years we have been following native title costs cases in our Native Title Year in Review to identify new principles and trends.
We reported on a rare exercise of the Federal Court's power to order costs against a solicitor personally in our 28 April 2020 article Costs update – Court extends costs order to solicitor propounding hopeless last minute application.
In previous years, we have also seen an increasing number of costs applications both by and against native title parties, considered most recently in our 10 April 2019 article Costs Update.
In 2020, there have been further costs applications with adverse outcomes for parties pursuing unreasonable positions in litigation.
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REMINDER OF THE PROVISIONS GOVERNING COSTS IN NATIVE TITLE PROCEEDINGS |
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The Federal Court has discretionary power to award costs: section 43 Federal Court of Australia Act 1976 (Cth); In addition, section 85A of the Native Title Act 1993 (Cth) provides:
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Costs – unreasonable objection to actions proposed to be taken to facilitate a remote proceeding
In Alvoen on behalf of the Wakaman People #5 v Queensland (No 2) [2020] FCA 960 (Wakaman), the Court awarded costs against a number of respondents who objected to known and reasonable actions proposed to be taken to facilitate a remote proceeding.
Orders were made which required the preservation evidence of a witness to be obtained using video-conferencing facilities at Kowanyama Aboriginal Shire Council with two support persons in attendance (May Orders).
As a result of the Council's inability to provide video-conferencing facilities to the witness, the North Queensland Land Council (NQLC) filed an interlocutory application which sought to amend the May Orders to enable the NQLC to provide the video-conferencing facilities to the witness, and to enable a legal representative of the NQLC to attend whilst he gave his evidence.
Several respondents objected to any NQLC legal practitioner being in the room whilst the witness gave his evidence, and opposed the interlocutory application.
Considerations for awarding costs
In considering section 85A(2) of the Native Title Act 1993 (Cth), the Court held that the respondents' objection to the proposed action was without merit, and seemed to serve little practical purpose other than to impede the progress of the litigation.
The Court noted that the presence of any NQLC legal practitioner was:
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only to provide technical support to an elderly and ill witness who was unlikely familiar with video-conferencing technology;
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in a remote location in Australia;
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in the middle of the public health pandemic caused by COVID-19 where it is necessary for witnesses to appear by such remote access technology; and
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in the context of facilitating compliance with Orders of the Court.
The Court found that the objection by the relevant respondents was on the basis that the applicant had not "explained the need" for that presence, however that "need" was evident as a matter of practical necessity (particularly in light of the fact that the May Orders contemplated support persons to assist, at least partly, given the witness' computer skills).
In light of this, the Court held that the objection was obstructive and unreasonable within the meaning of section 85A(2) of the Native Title Act. As a result, the respondents were ordered to pay the applicant's costs of and incidental to the case management hearing.
Indigenous joinder applicants ordered to pay costs
In Vea Vea (on behalf of the Wadja People) v State of Queensland [2020] FCA 405, three Indigenous litigants who were members of the Iman People sought to join the Wadja People native title claim as respondents (joinder applicants).
The Court held that it was in the interests of justice to allow the joinder applicants to join the Wadja claim as respondents.
However, the Court was satisfied that the unreasonable delay of the joinder applicants in making their application for joinder had caused the Wadja applicant to incur costs, particularly as lay witnesses would have to be re-interviewed and further conferences of experts may be required.
As a result, the Court ordered that the joinder applicants pay the Wadja applicant's costs of the hearing of the application for joinder and the Wadja applicant's costs thrown away as a result of the joinder.
Denial of costs application against third party who unsuccessfully attempted to be joined as a party to an ILUA
In Portframe Enterprises ATF Gnaraloo Station Trust v Western Australia [2020] FCA 1622, the native title party unsuccessfully sought costs against Portframe Enterprises in relation to its unsuccessful application to become a party to an ILUA between the native title party and the State.
The Court did not doubt the significance of Portframe's interest in the ILUA and its desire to be involved in the negotiations, but held that there was no legal right for Portframe to become a party to the ILUA under the Native Title Act. It noted that (at [66]):
If the applicant’s circumstances in the present proceeding expose a lacuna in the legislation, that is a matter which is appropriate for Parliamentary consideration with a view to determining whether the legislation should be amended to recognise and protect the rights and interests of a person in the position of the applicant.
The Court held that section 85A applied to the proceeding, which was properly regarded as a proceeding "in relation to applications filed in the Federal Court that relate to native title" within the meaning of section 80 of the Native Title Act. The Court did not consider that Portframe had engaged in any unreasonable conduct which would warrant a costs order being made against it.
State successfully obtains order for costs against native title party after claim struck out as attempt to relitigate
In McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v South Australia [2020] FCA 1875, a native title determination application was made on behalf of the Barngarla People in relation to an area south of Port Lincoln on the Eyre Peninsula in South Australia (Barngarla SEP claim).
The State sought orders that the Barngarla SEP claim be struck out or summarily dismissed on the basis that the claim was an attempt to relitigate matters that had been finally determined in earlier proceedings (Croft on behalf of the Barngarla Native Title Claim Group v South Australia [2015] FCA 9) (Croft).
The Court was satisfied that the Barngarla SEP claim was an attempt to relitigate issues that were finally determined in Croft, and found that the Barngarla SEP claim constituted an abuse of process. Accordingly, the Court ordered that the claim be summarily dismissed.
The State sought an order that the Barngarla applicant pay costs in respect of the application in accordance with section 85A(2) of the Native Title Act. The Court made orders affording the parties an opportunity to file supplementary submissions in respect of that question, with the State's application for costs to be determined on the papers.
In McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia (No 2) [2021] FCA 262, the Court considered the State's application for costs and held that the Barngarla applicant had acted unreasonably within the meaning of section 85A(2) of the Native Title Act in refusing to withdraw the Barngarla SEP claim and in defending the State's application, even after being put on notice that the State intended to seek costs in the event that it was successful. The Court ultimately awarded costs to the State and ordered that the Barngarla applicant bear the State's costs of preparing its application.
In doing so, the Court provided a useful reminder that its discretion to award costs is not limited by section 85A(2) of the Native Title Act. It is not necessary to prove unreasonable conduct as set out in that section, as the Court's discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) and section 85A(1) of the Native Title Act is wide enough to award costs. The Court said:
It may be accepted that the dismissal of an application as an abuse of process may form a sufficient basis for an award of costs against a native title applicant under section 85A of the Native Title Act. However, proof of an unreasonable act or omission is not an essential precondition to the discretionary power to award costs under section 85A(1). Section 85A(2) is not intended to limit the power conferred under either section 85A(1) or under section 43 of the Federal Court of Australia Act.
Key Insights
In the native title jurisdiction the general position remains that each party must bear its own costs. However, recent case law shows that the Federal Court retains a broad discretion to award costs and will do so where it sees unreasonable conduct and potentially in other circumstances.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
