FEDERAL COURT OF AUSTRALIA

A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 3) [2013] FCA 1134

THE COURT ORDERS THAT:

1.    The Interlocutory Applicant pay two-thirds of the Mirning Applicant’s costs on the ancillary interlocutory application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    In A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 (A.D. No 2) I dismissed an interlocutory application by Mr Laing to be joined as a respondent to the proceeding. These brief reasons on costs should be read in conjunction with A.D. No 2.

2    Prior to determination of the joinder application in A.D. No 2, Mr Laing filed an ancillary interlocutory application dated 12 July 2013 seeking orders that he be permitted to lead restricted oral evidence (ancillary application). On 30 July 2013, the Mirning Applicant filed submissions in opposition to the ancillary application. It relies on those submissions, and my rejection of Mr Laing’s ancillary application, in support of the contention it foreshadowed at the mention of the ancillary application that it should have its costs on an indemnity basis and to be paid forthwith.

3    In A.D. No 2 I explained why I refused Mr Laing’s ancillary application. These reasons need to be considered in the context of that analysis in which I expressed criticism of the unexplained late filing of the ancillary application. Nevertheless I expressed the view (at [50]) that the terms of the orders sought by the Mirning Applicant would be extreme.

4    I remain of that view but accept the submission that the unexplained late filing of the ancillary application was unreasonable within the meaning of s 85A(2) of the Native Title Act 1993 (Cth) (NTA) set out below (at [5]). In particular, Mr Laing failed to provide any adequate evidence in support of his ancillary application. Further, the relief he sought did not allow for (a) any male members of the Mirning Applicant or claim group to attend the proposed restricted hearing; (b) such persons to read the transcript, to allow for instructions to be sought; and (c) evidence to be obtained from male members of the Mirning Applicant or claim group in response. In addition, counsel and instructors for the Mirning Applicant, being women, would have been excluded were his ancillary application granted. He gave no detail as to the broad substance of the proposed restricted oral evidence thereby placing the Mirning Applicant in an almost impossible position. His evidence as to his distress and lack of trust was not adequately substantiated and was provided much too late.

5    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.

6    The authorities in this area were canvassed in detail in Cheedy v Western Australia (No 2) (2011) 199 FCR 23 by the Full Court (North, Mansfield and Gilmour JJ). I am mindful that the proceeding there under consideration was an appeal rather than an application, just as this was an ancillary interlocutory application rather than a proceeding. In Cheedy, the Full Court noted (at [43]) that whether s 85A NTA applies directly, as the Mirning Applicant now contends, or whether the Court applies the spirit of s 85A NTA in the sense discussed in the cases cited in Cheedy, the result is the same. That is because unreasonable conduct is expressly catered for by both s 85A(2) NTA and all the authorities which consider the judicial discretion to be exercised pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth).

7    It might equally be said that to apply for indemnity costs to be paid forthwith was not only ambitious but somewhat unrealistic. The ancillary application was unlikely to succeed but not so manifestly hopeless that it could never have been accommodated providing that suitable arrangements for costs in favour of the Mirning Applicant on an inevitable adjournment were made. Ultimately I did not consider that to do so was a suitable way to proceed for the reasons stated in A.D. No 2.

8    In balancing all these considerations, I have come to the view that the appropriate order for reasons similar to those expressed by the Full Court in Cheedy is that Mr Laing be required to pay two-thirds of the costs of the Mirning Applicant in respect of the ancillary application, to be taxed if not agreed.

9    The order will be that:

1.    The Interlocutory Applicant pay two-thirds of the Mirning Applicant’s costs on the ancillary interlocutory application, to be taxed if not agreed.

Associate:

Dated:    31 October 2013