FEDERAL COURT OF AUSTRALIA

A.D. (deceased) on behalf of the Mirning People v State of Western Australia [2013] FCA 565

FEDERAL COURT OF AUSTRALIA

A.D. (deceased) on behalf of the Mirning People v State of Western Australia [2013] FCA 565

CORRIGENDUM

1.    The reference to ‘court’s’ in heading above paragraph [7] be amended to ‘costs’ so that the heading reads: ‘Grounds of opposing a costs order’.

Associate:

Dated:    11 June 2013

THE COURT ORDERS THAT:

1.    The interlocutory applicant, Mr Robert Claude Lawrie, is to pay the Mirning Applicant’s costs of the interlocutory application dismissed on 9 April 2013.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    By interlocutory application filed on 24 December 2012, Mr Robert Claude Lawrie sought a declaration pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA) that ‘Campbell Law have been appointed as the solicitors for the claim titled [A.D.] & Ors v State of Western Australia & Ors (Mirning) (WAD 6001/2001)’. Three affidavits were relied upon in support: an affidavit of Mr Lawrie sworn 12 December 2012, an affidavit of Mr Campbell affirmed on 21 December 2012 and a second affidavit affirmed by Mr Campbell on 13 March 2013. Orders were made for the filing of submissions and evidence by Mr Lawrie and all parties who wished to respond.

2    The Mirning Applicant filed several affidavits in response and an outline of submissions contending that Mr Lawrie had no standing to bring the interlocutory application, contending that the Mirning Applicant’s authority was subject to the continuing supervision of the Mirning Claim Group and contending that decisions of the applicant group were not capable of being made by a majority as distinct from by consensus.

3    The Commonwealth of Australia also filed submissions indicating that Mr Lawrie had no authority to bring the interlocutory application himself and that the appointment of Mr Campbell of Campbell Law was not legally valid as the purported appointment by three members of the Mirning Applicant was not an appointment made by the actual Mirning Applicant which consists of eight named individuals who must act in concert. Even if it could be made by the five remaining named individuals who have capacity, they would still be required to act in concert. Secondly, the Commonwealth submitted that where named individuals cannot agree to act in concert (due to death or incapacity), or will not (due to disagreement), the claim group must replace the named applicants using s 66B of the Native Title Act 1993 (Cth) (NTA). The State of Western Australia (the State) also filed submissions contending that the interlocutory application should be dismissed as there was no standing or authorisation for it to be brought. Alternatively, it sought dismissal in the Court’s discretion.

4    Several exchanges occurred and as a result Mr Lawrie accepted that the application should be dismissed by consent on 5 April 2013. Four days later I made orders for the dismissal with provision for the parties to file and serve any submissions on costs.

5    The applicant has sought costs in relation to dealing with the interlocutory application.

6    The short issue is whether costs should follow the event as is the norm or whether there is something unusual about the present situation to take it outside the conventional position.

Grounds of opposing a court’s order

7    Mr Lawrie contends that the consent dismissal came about in conjunction with an agreement reached by all of the parties that a claim group meeting to replace and reauthorise the named individuals under s 66B NTA would be the best solution. Implicit in the submission is that the only reason he consented to the dismissal was by reason of that agreement.

8    Mr Lawrie also submits that the Goldfields Land and Sea Council (GLSC), which presently represents the Mirning Applicant, does not have any standing to seek costs. He argues that if the Mirning Applicant can only act by consensus, it is difficult to see how GLSC has obtained instructions to pursue costs against Mr Lawrie who was a named individual on the Mirning Claim, a Mirning elder and a member of the claim group. He argues that the question of costs should only be dealt with at the claim group meeting proposed to be held under s 66B NTA in the near future.

9    Mr Lawrie contends that his interlocutory application was not unreasonable within the meaning of s 85A NTA which concerns costs ‘as it identified an issue which requires a remedy’. The issue is whether the five remaining members of the Mirning Applicant continue to have the ongoing authorisation of the claim group which can only be resolved at the s 66B NTA meeting.

10    Even if s 85A NTA has no application in the matter, Mr Lawrie contends that it would inappropriate for a costs order to be made against him for the following reasons:

(a)    Mr Lawrie is a named individual applicant on the Mirning Claim, a member of the claim group and a Mirning elder;

(b)    His application is supported by two other members of the applicant, namely, Ms Wendy Lawrie and Mr David Hirschausen;

(c)    Mr Lawrie’s application has raised a legitimate issue regarding the authorisation of the named individual applicants by the claim group which will now be resolved by a meeting of the claim group; and

(d)    He is a pensioner and not in a position to pay costs.

CONSIDERATION

11    The relief sought by Mr Lawrie was pursuant to s 21 FCA which provides as follows:

21    Declarations of right

(1)    The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)    A suit is not open to objection on the ground that a declaratory order only is sought.

12    The discretion to award costs is set out in s 43 FCA which provides as follows:

43    Costs

(1)    Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs shall not be awarded.

...

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

(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:

(a)    make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial;

(b)    make different awards of costs in relation to different parts of the proceeding;

(c)    order the parties to bear costs in specified proportions;

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

(e)    award costs in favour of or against a party whether or not the party is successful in the proceeding;

(f)    order a party’s lawyer to bear costs personally;

(g)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise;

(h)    do any of the following in proceedings in relation to discovery:

(i)    order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery;

(ii)    order the party requesting discovery to give security for the payment of the cost of discovery;

(iii)    make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.

13    Section 85A NTA provides as follows:

85A    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.

14    I accept the submission made for the Mirning Applicant that the interlocutory application was not a proceeding under the NTA. In Lardil Peoples v State of Queensland (2001) 108 FCR 453, the Full Court (French, Merkel and Dowsett JJ) dismissed an appeal from a decision of Cooper J, Dowsett J concluding (at [156]-[157]):

156    It is difficult to avoid the conclusion that the jurisdiction conferred by Part 4 is intended to supplement the operation of Part 3 and that an application which relates to native title is an application made pursuant to that part. That would not include the applications referred to in subs 69(2). All other applications referred to in Part 3 appear to be expressly identified while those to which subs 69(2) refers are not. This suggests that subs 69(2) and subs 213(2) deal with the same matters. I consider that the conferment of jurisdiction pursuant to s 81 is limited to the matters arising under Part 3 and that subs 213(2) confers jurisdiction not otherwise expressly conferred under the Native Title Act.

157    If this construction is correct then with one possible exception, it follows that a “proceeding” for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by subs 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See subs 213(1). However that exception has no application for present purposes because the appellants have not sought to establish native title.

15    See also Brownley v Western Australia (No 2) (1999) 95 FCR 172 per Lee J (at [13]) where his Honour said:

It is plain that s 85A is not intended to apply to any proceeding other than a proceeding to which s 80 applies. Having regard to s 79A in the context of Pt 4 as a whole, the part should be read as setting out the "rules" for proceedings brought pursuant to the jurisdiction conferred on the Court by that Part, included within which "rules" is a "rule" in relation to the costs of such proceedings.

See also O’Mara v Minister for Lands (2008) 167 FCR 145 per Reeves J (at [27]).

16    It is difficult to know what Mr Lawrie means when he says that the GLSC cannot make a costs application. It is clear that the costs application is made on behalf of the Mirning Applicant which is represented by the GLSC.

17    It is difficult also to see how the proposed s 66B NTA meeting is relevant to Mr Lawrie’s costs application. The suggestion that he agreed to dismiss the interlocutory application because of the proposed meeting does not deal with the fact that the submissions were made by three opposing parties pointing out that his interlocutory application could not succeed in any event.

18    It is not to the point that the conduct of Mr Lawrie was not obviously unreasonable. The point is that he instituted a course of action, namely, filing an interlocutory application which he did not pursue and put the other parties to considerable time and expense. Indeed, it is not even to the point that the application was misconceived or had no prospects of success. It is the making of the application and the failure to pursue it that means that costs should follow the event. Of course the costs would have been even greater had Mr Lawrie pursued his application at a contested hearing and lost. It seems that that would be the most likely outcome given that s 66B NTA provides an exclusive mechanism for the removal of named applicants. Parties who put other persons to expense by instituting proceeding or interlocutory applications must expect that if they do not prosecute those proceedings or interlocutory applications successfully, or do not negotiate a comprehensive settlement, they will be liable for the costs.

19    In those circumstances, it is unnecessary to consider whether the actions of Mr Lawrie were unreasonable so as to enliven s 85A(2) NTA.

20    As to two remaining matters, I accept the reply submissions of Ms Jowett, counsel for the Mirning Applicant, that it is part of the usual retainer of a legal representative to seek costs that follow the event in a proceeding that was misconceived and without merit. It is not necessary, therefore, that the GLSC seeks specific instructions from the claim group when the claim group has already provided instruction to GLSC for it to be the solicitor on the record and to protect its interests.

21    The final matter relates to the submission that Mr Lawrie is a pensioner and impecunious. This affords no basis upon which the Court should decline to exercise its discretion to make the usual order as to costs. If it did, then, as Ms Jowett contends, impecunious parties would regularly seek to bring unmeritorious applications without sanction.

CONCLUSION

22    For those reasons, the Mirning Applicant is entitled to its costs in relation to the dismissed interlocutory application filed by Mr Lawrie. I note that costs have not been sought by the State or the Commonwealth or any other party. The following order is made:

1.    The interlocutory applicant, Mr Robert Claude Lawrie, is to pay the Mirning Applicant’s costs of the interlocutory application dismissed on 9 April 2013.

Associate:

Dated:    7 June 2013