FEDERAL COURT OF AUSTRALIA

Yalanji People v State of Queensland [2006] FCA 1103

YALANJI PEOPLE v STATE OF QUEENSLAND, ERGON ENERGY CORPORATION LIMITED, COOK SHIRE COUNCIL, DOUGLAS SHIRE COUNCIL, TELSTRA CORP LTD, WUJAL WUJAL ABORIGINAL COUNCIL, BURUNGU ABORIGINAL CORPORATION, RODERICK WILLIAM MCLEAN, RUSSELL DAVID O'DOHERTY, TERRY ANNE ROGERS, ODETTE CATHERINE PHILLPOT, VERNON JOHN GOODYEAR, KEVIN JOHN BRANDT, ARNFRIED BRENDECKE, ROBERT HARLOW AND ANDREW MARSHALL

QUD6008 OF 1998

ALLSOP J

21 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1. There be no order for costs consequent upon the discontinuance by the applicant of the amended notice of motion filed on 21 January 2005

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This proceeding has taken considerable time to reach its present position.

2                     The matter has been in mediation by the Native Title Tribunal for some years. Since 2003, intensive case management by skilled Registrars of the Court has assisted the parties to what is likely to be an agreed outcome based on a consent determination and a number of related Indigenous Land Use Agreements.

3                     In 2004, significant disputes arose between the applicant and a group of respondents claiming relevant interests in land at Cow Bay. They became known, and I shall refer to them as, the Cow Bay Respondents. The precise details of the dispute to a degree lies shrouded by the cover of mediation.

4                     It is sufficient to say that by the end of 2004, when most other aspects of the claims were proceeding satisfactorily in negotiation and case management, the dispute between the applicant and the Cow Bay Respondents appeared intractable and, to a degree, attended by personal animosity. This evident failure of agreement was perceived by the applicant (as discussed in directions hearings) to threaten the prospects of an overall settlement.

5                     Late 2004 and early 2005 saw the manifestation of this disagreement in competing motions before the Court. The Cow Bay Respondents filed a notice of motion on 29 November 2004 seeking discovery and particulars. The applicant filed an amended notice of motion on 21 January 2005 seeking the removal of the Cow Bay Respondents as parties or the separate determination of their interest in the land over which the claim group made its claim.

6                     These motions were set down for hearing. In March 2005 the Cow Bay Respondents’ motion was adjourned at their request. Time did not enable me to deal with the applicant’s motion on the day that it was originally listed. Written submissions were filed in support and in answer to the applicant’s motion. Senior counsel was retained by the Cow Bay Respondents for this purpose.

7                     It is appropriate to note that the applicant’s motion was based on a perception that the Cow Bay Respondents were endangering the prospects of settlement and a belief that they had no legitimate interest as parties. They had been joined by consent some years earlier. The applicant now, however, with the difficulties being caused by the Cow Bay Respondents (in the eyes of the applicant) wished to remove them from the litigation on the basis that they had no real interest in the proceedings.

8                     By September 2005, the parties had resolved many of their differences. The applicant said that it would discontinue its motion. At a directions hearing in February 2006, the Cow Bay Respondents advised that they did not consent to the discontinuance without their costs being paid.

9                     Written submissions were filed and an affidavit of the solicitor for the Cow Bay Respondents was filed on the costs issue. The parties agreed to have the issue dealt with on the papers.

10                  Helpful written submissions were filed by both parties. These submissions will remain with the papers. The detail in them and their clarity relieve me of the need to traverse all that the parties have debated. I propose to restrict myself to the essential elements of my reasons.

11                  Section 85A of the Native Title Act 1993 (Cth) provides as follows:

(1)   Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

(2) Without limiting the Court’s power to make orders under subsection (1), if the Federal 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 institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

12                  Section 43(2) of the Federal Court of Australia Act 1976 (Cth) provides as follows:

Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

13                  Full courts in De Rose v State of South Australia (No 2) [2005] FCAFC 137 and Davidson v Fesl (No 2) [2005] FCAFC 274 have recently discussed the question of costs in native title cases. It is unnecessary to set out what was there said. It is sufficient for present purposes to say the following. Section 85A removes this notion of costs following the event. Whilst unreasonableness in conduct will be a ground for an award of costs the discretion is not so limited.

14                  Taking the principles in De Rose, in particular into account, I am not persuaded that I should order costs against the applicant. I am not persuaded that there was an unreasonable stand taken by the applicant. Of course there was a contradiction in earlier consenting to the joinder of the Cow Bay Respondents and later seeking to have them removed. That, however, is explicable by reference to an overly conciliatory attitude earlier, as much as an unreasonable attitude later.

15                  I am not able to assess who, if anyone was being unreasonable in the lead up to the filing of the respective motions. It is sufficient to say that there was a significant degree of frustration by the end of 2004. The applicant’s motion was seen as one means of seeking to resolve the issue. Another may have been to amend the claim.

16                  I do not propose to determine the motion to award costs.

17                  I do not think that it can be concluded that the agreement to resolve the differences between the parties was necessarily worse than that which the Cow Bay Respondents were offering in 2004.

18                  Notwithstanding the submissions of the Cow Bay Respondents, I am not persuaded that there has been a basis made out for costs on the motion.

19                  The order will be that there be no order for costs consequent on the discontinuance of the amended notice of motion filed on 21 January 2005.

Associate:

Dated: 21 August 2006