FEDERAL COURT OF AUSTRALIA

Stock v Native Title Registrar (No 2) [2014] FCA 202

THE COURT ORDERS THAT:

1.    The applicants pay the costs of the second respondents fixed in the sum of $5,445.

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

REASONS FOR JUDGMENT

1    In this proceeding, the Wunna Nyiyaparli people successfully opposed the application made by the Nyiyaparli people to judicially review the decision of the Native Title Registrar by her delegate to register their claimant application under the Native Title Act 1993 (Cth) (NTA). See Stock v Native Title Registrar [2013] FCA 1290.

2    The Wunna Nyiyaparli people now seek costs in relation to their involvement in the proceeding.

3    They note they were the only contradictor in the proceeding as the Native Title Registrar did not substantively participate.

4    They say they were legally represented by a solicitor and counsel prior to the hearing on 27 February 2013 but were not legally represented at the hearing. At the commencement the former solicitor for the Wunna Nyiyaparli sought and was granted leave to cease to act and withdrew.

5    At the hearing the Wunna Nyiyaparli note they relied on the written outline of submissions dated 21 February 2013 prepared by their former legal representatives.

6    They submit that the Court dismissed the judicial review application for the reasons set out in their written submissions, save for a contention that the Nyiyaparli applicants lacked standing to bring the proceeding.

7    Accordingly, they submit the ordinary rule should apply and that the Nyiyaparli people pay their allowable costs on a party/party basis having regard to the invoices issued by their former legal representatives.

8    The Wunna Nyiyaparli in that regard rely on a tax invoice issued by Mr Dane Chandler, barrister, dated 2 December 2013 and rendered to Mr Shahzad Rind, c/- IndiEnergy Pty Ltd, for work relating to the preparation of the outline of submissions dated 21 February 2013 and filed in the proceeding in a total sum of $7,260, and a letter from IndiEnergy signed by Mr Rind, executive director, dated 9 December 2013, described as an invoice for “services to the Wunna Nyiyaparli people (WC12/1 and Federal Court file number: WAD22/2012)”, totalling $23,100. It is understood that Mr Rind at certain times was a solicitor acting for the Wunna Nyiyaparli.

9    The Nyiyaparli applicants oppose the making of any costs order.

10    The question then is whether, in all the circumstances, the Wunna Nyiyaparli should have their costs of the proceeding and, if so, whether the costs should be fixed, or taxed; and if fixed, in what sum.

Should the wunna nyiyaparli have their costs of the proceeding?

11    In dealing with these questions it is well understood that under s 43(2) of the Federal Court of Australia Act 1976 (Cth) the award of costs is at the discretion of the Court and must be exercised judicially on grounds connected with the case: see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139 (Gondarra) at [5] and [6]. Thus, ordinarily a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order.

12    First, the Nyiyaparli applicants note that s 85A(1) NTA provides that unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. They submit that s 85A does not displace the Court’s general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) in relation to the award of costs but it removes the expectation that costs will follow the event and the starting point in the exercise of discretion is that each party will bear their own costs: Cheedy v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 (Cheedy (No 2)) at [9]. Thus, they submit that in the absence of unreasonable behaviour, as referred to in s 85A(2) NTA, it is usual for each party to bear their own costs in native title proceedings.

13    The Nyiyaparli applicants accept that the balance of early authority suggested that s 85A NTA does not apply directly to proceedings brought for judicial review, but say that Cheedy (No 2) did not decide on the correctness of those decision but took a wide reading of “a proceeding” in s 85A NTA. They submit Cheedy (No 2) held, at [35], that the reference to a proceeding in s 85A takes its meaning from ss 80 and 81 NTA. Section 80 NTA says that the provisions of this Part (Pt 4) apply in “proceedings in relation to applications filed in the Federal Court that relate to native title”. Section 81 NTA deals with the exclusive jurisdiction of the Federal Court to hear and determine applications filed in the Federal Court that relate to native title. They note the Full Court in Cheedy (No 2) at [35] said that applications that “relate to native title” referred to in s 81 should not be unduly confined to proceedings claiming a determination of native title or compensation under s 61 and that proceedings that “relate to native title” is a wide expression. They note the Full Court was of the view that s 85A applied to appeals against future act decisions of the Native Title Tribunal under s 169 NTA, but did not need to finally determine the issue, as the result would be the same if it applied the spirit of s 85A: see Cheedy (No 2) at [42]-[43].

14    The Nyiyaparli applicants submit it is therefore arguable that on the interpretation of the width of s 85A NTA in Cheedy (No 2), the current application was one brought in the Federal Court that clearly “relates to native title”. The starting point therefore should be that each party should bear their own costs.

15    This submission should not be accepted. A judicial review proceeding in respect of the registration of a claimant application under the NTA does not, in my view, relevantly relate to native title. It relates to the registration of a claimant application made under the NTA. That does not, of itself, give the judicial review proceeding the character of a proceeding that relates to native title. Put another way, the relationship of the judicial review proceeding to native title is so indirect that it should not be considered a relationship that falls within the concept of an application that “relates to native title”. Accordingly, s 85A does not apply, although arguably its “spirit” may be regarded. See Northern Territory of Australia v Doepel (No 2) [2004] FCA 46. Nothing said in Cheedy (No 2) suggests a contrary view. Cheedy (No 2) was concerned with proceedings relating to future acts under the NTA, not a question of judicial review of a registration decision of a claimant application.

16    In these circumstances, on the face of it, the successful second respondents, the Wunna Nyiyaparli people, are entitled to their costs on the judicial review application.

17    Secondly, the Nyiyaparli applicants say they were successful on the issue of standing to seek judicial review which was challenged by the Wunna Nyiyaparli people. Thus, if the Court were minded to make a costs order, it would appropriate for there to be an apportionment of costs to take account of their success on that issue.

18    I consider there is force in this submission and that an appropriate reduction of about 25% of the overall costs order in favour of the Wunna Nyiyaparli is an appropriate way to take account of this success.

19    Thirdly, they also say that the issues upon which the Nyiyaparli applicants were unsuccessful raised important questions in relation to the registration test and that the determination of the Court provides guidance to the National Native Title Tribunal and other parties in the future concerning such registration issues and this should be accounted for when considering whether costs should be paid and the extent thereof.

20    I do not consider there should be any allowance made for the “public interest” aspect of the proceeding contended for by the Nyiyaparli applicants. See generally Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Gondarra at [10]-[14]. I do not consider any of the benefits of the proceeding identified by the Nyiyaparli applicants outweigh or qualify the primary entitlement of the Wunna Nyiyaparli to a costs order.

21    Fourthly, they further say that the application was prosecuted with due diligence and there were no delays or unreasonable procedural matters raised by the Nyiyaparli applicants.

22    I do not consider that the reasonable conduct of the Nyiyaparli applicants should lead to any reduction in a costs order. Failure to act reasonably may have been an aggravating factor in the other direction, but it is not relevant here.

23    Finally, the Nyiyaparli applicants say that costs orders are usually made to compensate the successful parties so they are not out of pocket and here the evidence points to the fact that the Wunna Nyiyaparli will not be required to pay any costs if there is no order as to costs.

24    In particular, they say no claim appears to have been made by the Wunna Nyiyaparli respondents for any costs for the time when their earlier solicitor, Mr Simon Blackshield, was acting in 2012.

25    They submit that the Wunna Nyiyaparli were not legally represented from 12 October 2012, when Mr Blackshield ceased, until 19 February 2013, when Mr Rind lodged a notice of appointment to act, and there does not appear to be any basis for a claim for legal costs prior to February 2013.

26    They note Mr Rind was on the record only from 19 to 26 February 2013 and the two invoices submitted both post-date the judgment in favour of the Wunna Nyiyaparli respondents, despite representation having ceased beforehand.

27    They submit the invoices may have been rendered only because of a possible claim for costs in the matter and there is no evidence that the Wunna Nyiyaparli would be liable to pay any costs if they are not ordered or recovered from the Nyiyaparli applicants. In other words, there is no evidence of prejudice suffered by the Wunna Nyiyaparli respondents.

28    They say there are also questions about whether the costs claimed, particularly by IndiEnergy, relate entirely to this judicial review proceeding or partly to other matters such as the Wunna Nyiyaparli claim in WAD22/2012 generally or Indigenous Land Use Agreements or to the Wunna Nyiyaparli’s position as respondents to the main Nyiyaparli claim. They also note the invoice is from IndiEnergy, which is not a solicitor. While Mr Rind is a solicitor, and his name appears on the IndiEnergy invoice, the services are said to be pursuant to s 84B NTA, which relates to the appointment of an agent rather than to s 85, which relates to representation in the Federal Court. Further, the invoice is to the Wunna Nyiyaparli applicant and refers to the Wunna Nyiyaparli application WAD22/2012, which is the native title determination application, not the judicial review one.

29    The Nyiyaparli applicants submit that all this suggests that it would be necessary, if costs were to be ordered to be paid, for such costs to be taxed, rather than fixed, as the costs are not itemised and they will cover a lot more than the legal representation in this matter.

30    The Wunna Nyiyaparli seek costs fixed, as I understand their application, by reference to the invoices rendered by Mr Chandler, barrister, for $7,260 and for IndiEnergy Pty Ltd and Mr Rind, totalling $23,100.

31    I would be prepared to accept the fees of Mr Chandler. He appears to have been appropriately and relevantly engaged by Mr Rind as an instructor in relation to the matter and plainly did the work concerned in relation to this proceeding, his submissions being before the Court. I do not consider it is open to question he was properly engaged or that the Wunna Nyiyaparli did not have a liability for his fees.

32    I am not satisfied, however, that the Court should comprehend the invoice submitted by IndiEnergy to the Wunna Nyiyaparli, for the range of reasons advanced on behalf of the Nyiyaparli applicants. Not only is there no clear evidence concerning the terms of engagement of either IndiEnergy (which is patently not a firm of solicitors) or Mr Rind or as to what work was done in relation to what proceedings, but the itemisation calculation of the $23,100 concerned lacks any appropriate detail. I do not consider a taxing process would obviate these obvious deficiencies. If they were amenable to explanation the details should have been put before the Court on this application for costs.

33    The Wunna Nyiyaparli do not seek to put on direct evidence about these matters but apparently require their costs order fixing costs reflecting these two invoices.

Should the costs be fixed or taxed and, if fixed, in what sum?

34    I am prepared, notwithstanding the submissions of the Nyiyaparli applicants, to consider fixing costs in the proceeding such as this where only the fee of the barrister is in issue. To do so will avoid the parties incurring additional costs in proceeding with a taxation of the costs. See generally, albeit that the discussion is in respect of the power of the Court to make a lump sum costs order pursuant to R 40.02(b) of the Federal Court Rules 2011 (Cth), Carey v Freehills [2014] FCA 132.

35    I will do so on the basis, as explained above, that there be a 25% reduction on account of the fact that the Wunna Nyiyaparli unsuccessfully argued at the hearing, based on Mr Chandler’s submissions, that the Nyiyaparli applicants did not have standing to bring the judicial review proceedings.

36    In the result, I think the costs recoverable should include the $7,260 fee of Mr Chandler. I would then reduce that sum by 25% or $1,815 by way of apportionment of the issues that were unsuccessfully argued on the judicial review application by the Wunna Nyiyaparli party. That produces a sum payable of $5,445.

conclusion and order

37    I would make the following order:

1.    The applicants pay the costs of the second respondents fixed in the sum of $5,445.

Associate:

Dated:    12 March 2014