FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Wulli Wulli People v State of Queensland (No 2) [2012] FCA 339

THE COURT ORDERS THAT:

The interlocutory application filed 14 October 2011 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        In Anderson v Queensland (2011) 197 FCR 404 I made an order dismissing the notice of motion which was before the Court. Pursuant to an interlocutory application filed 14 October 2011 the successful respondents to that motion now seek an order that Queensland South Native Title Services (“QSNTS”), the legal representative of the applicants to the motion, pay the costs of the respondents to the motion fixed in the amount of $30,970. In particular, they seek the following orders:

1.    Queensland South Native Title Services Limited pay the costs of the respondents to the notice of motion filed 29 June 2011 of responding to the affidavits of Shahzad Rind filed 24 June 2011, Desmond James Dodd and Jeffrey Williams filed 30 June 2011 and Elliott Anderson filed 1 July 2011 (identified in annexure “CH1” to the affidavit of Colin Hardie filed 17 October 2011), fixed in the amount of $30,970.00, alternatively to be taxed if not agreed.

2.    Such other orders as the Court deems fit.

2        In order to avoid confusion, I shall refer to the successful respondents to the motion (who are applicants to the interlocutory application currently before the Court) as “the respondents to the motion”. Similarly, I shall refer to the unsuccessful applicants to the motion (who are the respondents to the interlocutory application currently before the Court) as “the applicants to the motion”.

Background

3        The nature of the original dispute the subject of the substantive judgment in Anderson and the identity of the parties to that dispute are explained in that judgment. Relevantly for the purposes of this proceeding, the applicants to the motion were 3 of the 15 persons constituting the applicant to the Native Title Determination Application in the Wulli Wulli claim, and the respondents to the motion the remaining 12 of those 15. The applicants to the motion had, unsuccessfully, sought an order that:

The “Notice of Change of Service Address” (sic) filed by Just Us Lawyers on 24 May 2011:

a. Was not authorised by the applicant in the Native Title Determination of the Wulli Wulli People (QUD 6006 of 2000);

b. Is of no effect; and

c. Is to be removed by the Registrar.

4        At the time the notice of motion was heard by the Court the applicants to the motion were represented by QSNTS. QSNTS had represented the native title determination applicant, and the question whether this particular representation would continue was the key issue in the case. QSNTS is a representative Aboriginal/Torres Strait Islander body under Pt 11 of the Native Title Act 1993 (Cth) (“Native Title Act”) by virtue of the operation of s 203AD of that Act. QSNTS was not a party to the proceedings.

5        Specific background facts to which the respondents to the motion refer in their submissions are as follows:

6        QSNTS takes no issue with this chronology of facts.

7        Following delivery of judgment on 11 October 2011 in Anderson, Mr Hardie for the respondents to the motion indicated that his clients would file an interlocutory application seeking costs against QSNTS. The matter has proceeded on the papers.

Submissions

8        The case of the respondents to the motion in summary is as follows:

    The QSNTS affidavits raised serious allegations which it was essential the respondents to the motion answer, including by addressing the factual challenge then being made to the validity of the authorisation meeting at which it was decided, by a majority, to instruct Colin Hardie of Just Us Lawyers.

    At the directions hearing on 24 June 2011, counsel for QSNTS submitted that QSNTS was likely to challenge the Notice of Change of Service Address filed by Just Us Lawyers on 23 June 2011 because QSNTS asserted that there was an absence of understanding and the informed consent of a number of the persons comprising the applicant to the native title determination. Counsel relied on the affidavit of Shahzad Rind sworn 24 June 2011 which had annexed statements from some of the persons comprising the applicant to the native title determination which purported to cast doubt on whether they had given their free and informed consent to withdrawing instructions from QSNTS to act in the prosecution of the native title determination application.

    As a consequence of the submissions on 24 June 2011 the Court ordered that QSNTS file a notice of motion seeking the removal of Just Us Lawyers as solicitor on the record.

    QSNTS filed a notice of motion and supporting affidavits of Mr Dodd, Mr Williams and Mr Anderson. Those affidavits raised issues relating to the veracity of the instructions to Just Us Lawyers to change solicitors, and of the validity of the claim group authorisation meeting of 13 June 2011. They did not contain material relevant to the entitlement of the applicant to the native title claim to make decisions by majority.

    In response to this material, the respondents to the motion filed extensive affidavit material on 7 and 8 July 2011.

    Only on 8 July 2011 did QSNTS:

o    indicate that the basis of its challenge to Mr Hardie’s standing as solicitor on the record was that, as a matter of construction of the Native Title Act, instructions could only be given by unanimous decision of all persons comprising the applicant to the native title claim; and

o    through Counsel, inform the Court that QSNTS did not intend to rely on the QSNTS affidavits.

    By 8 July 2011 substantial costs had already been incurred by the respondents to the motion in dealing with and answering the case then being put by QSNTS and the QSNTS affidavits. These costs were wasted.

    It is appropriate that QSNTS should pay those costs to the respondents to the motion because:

o    the role of the lawyer is of particular relevance in relation to the duty of a party under s 37N of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”);

o    it is not fair or reasonable that the applicants to the motion be required to pay the costs sought by the respondents to the motion, because those moneys are funds that the applicant to the native title claim would otherwise have available to it to prosecute the substantive proceeding;

o    the conduct of QSNTS caused wasted costs to be incurred by the respondents to the motion.

9        QSNTS submits in summary that the Court ought dismiss the interlocutory application because:

    the respondents to the motion are in error in contending that QSNTS was a moving party in the previous proceedings;

    consideration of an award of costs in this proceeding must be in light of s 85A of the Native Title Act;

    no unreasonable act or omission occurred in the proceeding within the meaning of s 85A. After receiving the material of the respondents to the motion, the applicants to the motion formed the view that the issues had narrowed;

    orders such as those sought may only serve to exacerbate dissent in the native title group;

    no submissions have been made as to how or why the conduct of QSNTS resulted in wasted costs being incurred.

Consideration

10        Commonly, costs follow the event, and an applicant for a notice of motion who is unsuccessful would usually be ordered to pay the costs of the respondent. In this matter, however, the respondents to the motion do not seek costs against the applicants to the motion, but rather against their legal representatives. This matter is further complicated by specific provisions of the Native Title Act in respect of costs, to which I will shortly turn.

11        The Court has jurisdiction to award costs in all proceedings before it. Section 43 of the Federal Court Act confers broad discretion. In particular, the respondents to the motion directed my attention to s 43(3)(d) and (f) of the Federal Court Act, which so far as material provides:

(3) Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following:

…

…

…

(d) award a party costs in a specified sum;

…

(f) order a party's lawyer to bear costs personally.

12        It is not apparent from s 43(3)(f) that the power of the Court to order costs against a party’s legal representative is dependent upon any action or omission of the party instructing the lawyer. Indeed, Courts have tended to make such orders on the basis that the lawyer has acted with impropriety, including:

    where the practitioner has abused or used the Court’s process for improper or ulterior purpose (White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 229, 230, 236, 239, Levick v Commissioner of Taxation (2000) 102 FCR 155 at [44]); or

    where the lawyer has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of a case as to be seriously derelict in his or her duty to the client and/or to the Court (Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2007) 233 ALR 97, De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at [9]).

13        More broadly, the Courts are also prepared to order costs against a non-party to proceedings where the Court considers the non-party is “the real party” to the litigation: Knight v FP Special Assets Ltd (1992) 174 CLR 178. Potentially, this principle is equally applicable where the Court considers that a legal representative is “the real party” to litigation.

14        In this case both parties have also made extensive submissions referring to s 85A of the Native Title Act. Special provision is made in the Native Title Act in respect of payment of costs of proceedings under the legislation. Section 85A provides:

Costs

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

Unreasonable conduct

(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.

15        In my view however the application by the respondents to the motion for costs must fail.

16        First, I am not persuaded that QSNTS was in any real sense the “real” applicant to the motion previously before the Court. While QSNTS may have benefitted from a finding in favour of the applicants to the motion because the result would have been the reinstatement of QSNTS as the solicitor on the record in the substantive proceedings, the material before the Court demonstrates nothing more than usual steps taken by a solicitor on the record in accordance with its clients’ instructions, including briefing of counsel and filing of affidavit material sworn by those clients. In my view the submissions of the respondents to the motion that counsel acted “for QSNTS”, that factual issues were “raised by QSNTS” or that there were “QSNTS affidavits” are not substantiated.

17        Second, there is no evidence before the Court that QSNTS has abused or used the Court’s process for improper or ulterior purposes so as to warrant an order for costs, or that QSNTS has so failed in its duty to give proper consideration to relevant questions involved in the preparation and presentation of the case as to be seriously derelict in its duty. The respondents to the motion incurred costs in answering the affidavits of Mr Rind (filed 24 June 2011), Messrs Dodd and Williams (both filed 30 June 2011), and Mr Anderson (filed 1 July 2011) all of which had been filed on behalf of the applicants to the motion. The applicants to the motion, presumably on advice by QSNTS and Counsel, subsequently decided not to rely on those affidavits and to limit their case. This is clear from the transcript of 24 June 2011 page 15 lines 5-33, and further from the transcript of 8 July 2011 pages 15 lines 40-45 and page 16 lines 39-43. However such events scarcely demonstrate a dereliction of duty warranting a costs order against QSNTS. As observed by the New South Wales Court of Appeal in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 725, litigation is inescapably chancy. As Hamilton J similarly observed in Woodland v Manly Municipal Council [2003] NSWSC 524 at [7], the focus of evidence in litigation changes in many cases because of the development of issues and themes during the course of the litigation. Material before the Court indicates nothing more than a narrowing of issues, consequent upon sighting of material produced by the other side – a common occurrence during the course of litigation.

18        Third, despite submissions of both parties highlighting s 85A of the Native Title Act, I am not persuaded that this section is relevant in this case. Other than sweeping claims by the respondents to the motion relating to alleged actions of QSNTS including, inter alia, being represented by Counsel at the hearing of the notice of motion and making assertions, the respondents to the motion do not contend that QSNTS was a “party” to the motion for the purposes of s 85A. There is no material before the Court to support a finding that QSNTS is a party to the proceedings, pursuant to s 84(3)(b) of the Native Title Act (cf comments of Lindgren J in Simms v Minister for Land and Water Conservation (2002) 193 ALR 257 at [14]-[15]), through subsequent joinder, or otherwise.

19        Indeed in their written submissions the respondents to the motion specifically say that:

the conduct of the applicants, by their legal representative QSNTS, involved unreasonable acts that caused the respondents to incur costs.

(Emphasis added.)

20        Rather, the respondents to the motion submit, in essence, that QSNTS was responsible for the conduct of that litigation on behalf of the applicants to the motion, such that QSNTS should itself be liable to pay the costs of the respondents to the motion.

21        While recently in QGC Pty Limited v Bygrave [2012] FCA 309 Reeves J ordered that a representative body, NTSCORP Limited, pay costs of the applicant and the second respondent in those proceedings, in that case NTSCORP Ltd had been specifically joined as a party to the proceedings. Bygrave is distinguishable from the case before me, where QSNTS was not similarly joined as a party to the proceedings.

22        It is difficult to see how this fact situation and the present claim sits with s 85A, particularly as the respondents to the motion specifically resile from any contention that the actual applicants to the motion pay their costs.

23        However, even if s 85A is relevant because it informs the approach of the Court to the prospect of ordering costs against QSNTS in this case, I am not persuaded that it supports an order that QSNTS (rather than the applicants to the motion, who were parties to the proceeding) pay the costs of the respondents to the motion. There is authority that an abandonment of a course of litigation can support an order for costs against a party pursuant to s 85A(2). In Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659 for example the Birri Gubba People presented a total of five lists, none of which, on final consideration, produced even one person whom they wished to call as a witness, but which required the respondent State to incur substantial costs in complying with the orders and directions relating to the preservation of evidence and preparing for and attending the various directions hearings for that purpose. Even in that case however Rares J was only prepared to order that the Birri Gubba People pay 50% of the relevant costs of the State.

24        As I have already noted, despite a general claim that the applicants to the motion engaged in unreasonable acts and omissions, the respondents to the motion have deliberately refrained from pursuing the applicants to the motion for costs under s 85A. Even assuming that the acts of the applicants to the motion in deciding not to rely on the affidavits of Messrs Rind, Dodd, Williams and Anderson could be described as “unreasonable” – and in my view, for reasons I have already given earlier in this judgment in relation to the litigation process in this case, they were not – no case has been advanced to support a finding that, instead, the legal representatives for the applicants to the motion should be required to pay those costs.

25        The appropriate order is to dismiss the interlocutory application.

Associate:

Dated:    3 April 2012