FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635

THE COURT ORDERS THAT:

1.    Mr Miller pay to the applicant costs of and incidental to his interlocutory application of 30 September 2011 and as amended on 30 October 2013, from and including 30 October 2013, to be assessed on a party and party basis save for the disbursements reasonably incurred by the applicant which are to be taxed on an indemnity basis.

2.    Mr Miller pay to the State its costs of and incidental to his interlocutory application of 30 September 2011 and as amended on 30 October 2013, from and including 30 October 2013, to be assessed on a party and party basis.

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

REASONS FOR JUDGMENT

1    The relevant history of the Far West Coast Native Title Claim and the concerns of Robert Victor Miller about it are set out largely in Far West Coast Native Title Claim Group v State of South Australia (2012) 204 FCR 542 at 544-545, [4]-[11]; [2012] FCA 733 (FWC No 2); Far West Coast Native Title Claim Group v State of South Australia (No 3) [2012] FCA 1435 (FWC No 3); Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 (FWC No 4); Far West Coast Native Title Claim v State of South Australia [2013] FCA 717 at [5]-[23] (FWC No 5); and Far West Coast Native Title Claim Group v State of South Australia (No 6) [2013] FCA 1270 (FWC No 6).

2    On 8 November 2013, I made orders refusing the orders sought on Robert Victor Miller’s then amended interlocutory application of 30 October 2013. On 4 December 2013, I published reasons for those orders: FWC No 6. The question of costs was reserved. References to the relevant history of the Far West Coast Native Title Claim and Mr Miller’s concerns were outlined in FWC No 6 at [4]-[19]. I need not repeat them here, but they constitute the relevant history to this application for costs.

3    It is necessary, however, to note that Mr Miller on 30 September 2011 filed an interlocutory application, which was amended on 16 March 2012 before any hearing (the initial application). The terms of the initial application and its outcome is described in [9]-[17] of FWC No 6.

4    The initial application survived only as a vehicle for any further interlocutory relief. On 30 October 2013, it was amended to seek the orders addressed in FWC No 6: see at [19] (the October application). The October application was heard on 8 November 2013, and as noted the orders sought were refused. Costs of the application were reserved.

5    This judgment deals with the costs applications which have followed.

THE COSTS CLAIM

6    The applicant, the Far West Coast claim group, then sought cost orders against Mr Miller for all interlocutory hearings instituted or pursued by Mr Miller on the initial application and on the October application.

7    The applicant also sought costs orders against Mr Miller’s legal representative, Mr Campbell, of the October application. The applicant contended that Mr Campbell engaged in an abuse of process by recontending matters that had been the subject of earlier decisions.

8    The State of South Australia sought costs against Mr Miller of the October application.

9    There was a hearing of these applications on 24 February 2014, and then I made orders that the questions of costs be heard on the papers. The exchange of the written material has now been completed.

THE PRINCIPLES

10    Section 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) confers power to the Court to award costs. The Court has a wide discretion but is required to exercise its power judicially and in accordance with established principles. Particularly, s 43(3)(g) of the FCA Act provides that the Court may award costs against a party on an indemnity basis.

11    The general principle is that costs would follow the event in the absence of special circumstances justifying some other order: Watson v State of Western Australia (No 3) [2014] FCA 127 at [69]; Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [7] (Cheedy).

12    That position is modified by s 85A of the Native Title Act 1993 (Cth) (the NT Act) which provides:

(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.

13    In relation to the operation of s 85A of the NT Act, the Full Court in Cheedy observed at [9]:

(1)    s 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the FCA Act;

(2)    the “unreasonable conduct” of the parties is not a jurisdictional fact which preconditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1);

(3)    whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; and

(4)    it is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants: Reid v State of South Australia [2007] FCA 1479 at [54].

See generally, Ward v Western Australia (No 2) (1999) 93 FCR 305 and De Rose v State of South Australia (No 3) [2005] FCAFC 137. Finn J referred to these principles in a compendious way in McKenzie v State of South Australia [2006] FCA 891 at [8]. See also Reid v State of South Australia at [53], [54].

STANDING TO SEEK COSTS

14    Counsel for Mr Miller submitted that the Applicant has no entitlement to seek costs from Mr Miller because there is no liability owed by the Applicant to their legal representative, South Australian Native Title Services Limited (SANTS). That is because SANTS will not charge the Applicant for the legal services it has provided, and in turn SANTS as the Representative Body for native title for South Australia under Part 11 Div 2 of the NT Act receives funding from the Commonwealth for the services which it conducts to fulfil its functions under the NT Act, including the conduct of this proceeding for the applicant.

15    This Court had awarded costs in favour of Native Title claimant groups previously: for example, Watson v State of Western Australia (No 3) [2014] FCA 127 (Watson); A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 3) [2013] FCA 1134 (Mirning); Tullock v State of Western Australia [2010] FCA 351 (Tullock). In Watson, the claim group was represented by the Kimberley Land Council. In Mirning, Goldfields Land and Sea Council were the claim group’s legal representatives. In Tullock, the claim group was represented by the Central Desert Native Title Services. All three of those legal representatives, like SANTS, are Native Title Representative Bodies recognised under s 203AD of the NT Act. It is noteworthy that the judgments in Watson, Mirning and Tullock did not address whether those Native Title Representative Bodies were publicly funded in a manner similar to SANTS and if so, whether costs ought to be awarded if the claim groups were not liable to those bodies for legal costs.

16    Counsel for Mr Miller submitted that such bodies are analogies to legal aid institutions. However, the legal aid regimes provide statutory conferral of rights for the applicant or the applicant’s publicly funded legal representative to pursue costs: see s 20 Legal Services Commission Act 1977 (SA); s 40G Legal Aid Act 1978 (Vic); ss 42 and 43A Legal Aid Commission Act 1979 (NSW); s 31 Legal Aid Queensland Commission Act (Qld); s 25 Legal Aid Commission Act 1990 (Tas); s 33 Legal Aid Act 1977 (ACT); s 32 Legal Aid Act (NT). On the basis that no parallel regime exists under the NT Act, counsel for Mr Miller maintained the submission that there is no power for representative bodies such as SANTS to charge for legal services provided to their clients, therefore, the applicant in this matter was not liable for such costs and so cannot be eligible to seek cost orders against unsuccessful litigants such as Mr Miller.

17    Although, the applicant did not personally incur legal costs by engaging SANTS, there is no doubt that SANTS incurred legal costs in defending Mr Miller’s interlocutory application.

18    In my view, this situation is analogous to the relationship between the Crown and its legal officers. In Inglis v Moore (No 2) (1979) 46 FLR 470, St John and Brennan JJ found at 472:

[A] successful party who is represented by the Crown Solicitor in litigation in which the Crown has an interest is not disentitled to costs from an unsuccessful party merely because he is not under a personal liability to the Crown solicitor for costs.

…

[T]he Crown, by virtue of its interest in the subject-matter of the litigation was entitled to make its solicitor available to act for the party on the record, and that as the Crown incurred the expense of his employment the party he represented was entitled to recover the costs awarded to him.

19    The position is well-established. In The Begarin (1916) 12 Tas LR 26 at 26-27, Nicholls CJ found that the Crown does not have its cases conducted free of cost, but instead pays salaries which must be taken to be merely the mode in which it remunerates its legal officers who conduct its cases for it. This is not dissimilar to salaries paid to salaried lawyers from legal aid institutions and public bodies and authorities.

20    Going back further, Lord Stormonth Darling observed in Lord Advocate v Stewart (1899) 36 Sc LR 945 at 945:

So long as fees proposed to be charged are reasonable in amount…there is no reason why he should escape part of the consequences of his unrighteous litigation merely because of this arrangement between the Crown and its officers. In one sense, no doubt, he does not cause any additional expense to the Crown; because the salaries would have to be paid whether he litigated or not. But it is to be presumed that the salaries have been calculated on the footing of there being an average amount of litigation, and each salary therefore may be said to contain the equivalent of each separate fee; if so, there is no injustice in the Crown being recouped to that extent by the losing party.

21    The established jurisprudence is that a party who is represented by the Crown Solicitor or Australian Government Solicitor notionally incurs cost to his solicitor although he will not have to pay any money to the solicitor: see Ditton v Gallagher (1992) 110 ACTR 12 at 15 per Gallop J.

22    I recognise that the present relationship is a little different in that it is between a Native Title Representative Body and a claim group. However, in my view there is a close analogy to the cases referred to above. Firstly, where a Native Title Representative Body has provided legal assistance in relation to the conduct of a native title determination application, costs will have been incurred by its legal officers on behalf of the applicant for the claim group and even though the applicant for the claim group may not expect to be liable to pay for them, the relationship is such that underlying it is the understanding that such a liability may exist. The Representative Body is providing legal services, and fulfilling its statutory mandate, as contemplated by the NT Act on behalf of that applicant. In addition, the Representative Body in turn is funded to provide those services in a way which expressly provides for the application of those funds in that way. It may be added that the reverse to the present position may also occur. A costs order under s 43 of the FCA Act, having regard to s 87A of the NT Act, may be made in appropriate circumstances against an applicant, and those costs would then in the normal course be paid through the Representative Body provided the applicant was represented through it.

23    Legal aid institutions and Native Title Representative Bodies are similar in nature. They derive most of their funding from the government and do not directly charge legal costs to those whom they represent. Native title Representative Bodies like SANTS serve a more special function in that, inter alia, they provide assistance with respect to native title applications: Division 3 of Part 11 the NT Act.

24    The argument that SANTS cannot seek costs orders points out that the NT Act does not contain detailed statutory guidance like those in legal aid regimes. In my view, the lack of a specific costs regime in the NT Act such as appears in the legislation referred to in [16] above does not make their respective positions different in principle so as to preclude Native Title Representative Bodies from seeking costs. Section 85 of the NT Act confers wide discretion on the Court to make cost orders. That power exists and must be understood in the context of the NT Act. It contemplates that bodies such as SANTS may have an employed legal team which conducts on behalf of an applicant a claim such as the present, and alternatively, that it may fund an independent lawyer or lawyers to provide the legal services to conduct such a claim. It would be difficult to suggest that the independent lawyer, funded by SANTS, should not be able to seek costs from another party in appropriate circumstances. That is what s 85A contemplates. That should equally apply where the SANTS legal team does that work. The roles and functions of Native Title Representative Bodies are set out in great detail in Part 11 of the NT Act. It is not uncommon for Native Title Representative Bodies such as SANTS to rely on the Commonwealth for funding. Counsel for Mr Miller recognised that expense incurred in litigation in native title matters does reduce SANTS’ capacity to provide other litigation assistance to other claimants. To preclude those bodies from seeking costs orders through an applicant, including disbursements such as those to counsel, when appropriate could work obvious injustice in a real and practical sense where SANTS is either funding the legal services for the applicant or is providing its own legal resources to the applicant.

25    If Native Title Representative Bodies are unable to seek cost orders, it will always be the position that there will be no cost orders when the party represented by a Native Title Representative Body is successful, however any respondent party may conduct its case. On the other hand, the argument of Mr Miller would mean that if a party represented by a Native Title Representative Body is unsuccessful, that party is left open to an adverse costs order. That is clearly not what s 85A contemplates. Indeed, if Mr Miller’s contention is correct, it would mean that this Court’s discretion to make costs orders is substantially restricted. That would be inconsistent with the Full Court in Cheedy.

26    In my view, the applicant is entitled to seek cost orders in the terms sought.

CONSIDERATION

27    It is convenient to record the earlier applications and their outcomes.

28    In FWC No 2, I refused Mr Miller’s initial application. I refused to grant a deconsolidation order on the basis that Mr Miller did not have standing because he did not purport to represent the Mirning Claim group, only some of them: see at [29]-[30].

29    Mr Miller also sought to be joined as a respondent to the proceedings and for an order in accordance with s 84D(1)(a)-(b) of the NT Act that the applicant produce evidence of duly given authorisation from the Mirning People in the meetings of 21-22 July 2005 and 19-20 December 2005. At the time, I elected to relist the issue for further hearing if those orders were pursued: see at [62]-[63].

30    In FWC No 3, in support of the initial application, Mr Miller was given leave to file and serve further evidentiary material. The applicant also filed a number of affidavits in response, one of which was an extensive affidavit from Osker Linde which contained a series of documents relating to the circumstances in which the claim was authorised and had been progressed since that time. The hearing was listed for 17-18 December 2012. The affidavit of Mr Linde essentially provided the evidence sought by Mr Miller referred to in [29] of these reasons.

31    On 7 December 2012, Mr Miller applied for the hearing date to be vacated and sought orders of discovery, exchange of witness lists and a proposal to agreed facts: FWC No 3 at [8]. I refused the application to vacate the hearing, on the basis that Mr Miller had already filed affidavits in support of his application, and the applicant had filed its documents in response. Given that the matter had already been delayed, any further delay in order for Mr Miller to assemble more evidence of an unspecified character would inflict significant injustice on the other parties: FWC No 3 at [10]-[16].

32     During the hearing of the initial application on 7 December 2012, counsel for Mr Miller indicated that he did not seek an order that Mr Miller be included as a respondent party: FWC No 4 at [3]. Instead, Mr Miller sought leave to further amend the initial application, but that was refused: FWC No 4 at [5]-[11].

33    The initial application was stood over with no orders other than the remaining order for “such other orders as the Court deems appropriate”: FWC No 4 at [13] and [16].

34    On 30 October 2013, Mr Miller filed the October application on the same interlocutory summons. As appears from FWC No 6, there were three alternative reasons why the orders then sought were refused:

(1)    Mr Miller had no standing to seek the orders he sought in the October application: FWC No 6 at [27], [32]-[33];

(2)    the orders sought by Mr Miller were either substantially identical to those which had previously been refused in FWC No 4, or were orders that the Court had no power to make: FWC No 6 at [35]-[37]. Although I did not finally determine those issues in FWC No 4, Mr Miller raised the same arguments as previously without directing the Court to any new evidence or relevant circumstances that justified their revival;

(3)    Mr Miller had failed to adduce sufficient evidence to support his factual contentions: FWC No 6 at [38]-[81].

COSTS AGAINST MR MILLER IN FAVOUR OF SANTS

35    The applicant seeks costs on an indemnity basis against Mr Miller for all interlocutory applications instituted or pursued by him during, on and after 30 September 2011. The ordinary rule is that costs be paid on a party and party basis. To depart from that general rule, there should be some special or unusual feature in the case: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234 (Colgate-Palmolive).

36    Section 85A of the NT Act expressly identifies unreasonable acts or omissions as a factor when the Court is determining cost orders. Unreasonable conduct may include conduct that has led to unnecessary or avoidable expenditure for a party: see Birri-Gubba (Cape Upstart) People v Queensland [2008] FCA 659 at [11] (Birri-Gubba).

37     In Hamod v New South Wales (2002) 188 ALR 659 (Hamod), the Court found at [20]:

Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.

38    Sections 37M and 37N of the FCA Act impose an obligation on parties to civil proceedings to facilitate the just resolution of disputes as “quickly, inexpensively and efficiently as possible”. This does not, however, override the Court’s obligation to do justice between the parties: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [23], [30], [98] and [112] (AON Risk).

39    I recognise that Mr Miller had genuine concerns. However, I reject the submission that his conduct was reasonable in all the circumstances. Over the past two years, Mr Miller attempted on four occasions to press versions of interlocutory applications which sought to challenge the progress of this claim as a larger group claim. The applications have variously sought, on behalf of himself and some (but not all) Mirning People to require the conduct of the claim in a way different from that apparently authorised, or to intrude into the claim management process a level of decision-making different from that which was apparently authorised. He did not succeed in any of the applications. All parties involved, including the State and the applicant on behalf of the claim group, had to expend considerable resources in dealing with each variant of the orders sought.

40    Mr Miller pursued authorisation evidence through a Court hearing without first pursuing such evidence by correspondence from the Applicant. He requested the vacation of hearing dates after having over two years to prepare for the hearing: FWC No 3. He pursued an application that had alternative methods of redress whilst lacking standing in the Court: FWC No 6 at [27]-[33]. He did not press his application to become a respondent party. He sought orders that this Court previously dismissed: FWC No 6 at [34]-[37]. Ultimately, the claim as progressed and proposed to be resolved was approved by a final meeting of the claim group.

41    Nevertheless, I find that Mr Miller had genuine concerns regarding issues considered in FWC No 2. I do not think it was unreasonable for him to seek an order requiring the applicant to produce evidence of the authorisation. From that point on, however, I consider that his conduct was unreasonable. The application for the vacation of the hearing listed on 17-18 December 2012 made ten days before, when he had a substantial amount of time to prepare, was unreasonable. Further, he sought to continue proceedings when it was found that he lacked standing. Leaving aside that issue of standing, he sought to re-agitate issues that were left open without adducing new relevant evidence or circumstances, and sought orders that were clearly outside the jurisdiction of this Court. More fundamentally, as a member of the claim group, he was seeking to assume a status which he could not assume without first establishing that his position was such that, notwithstanding his membership of the claim group, he should be joined as a respondent party to the application.

42    Consequently, in my view, it is appropriate to exercise the costs discretion in the circumstances to order that Mr Miller pay to the applicant the costs incurred by the applicant (through SANTS) of and incidental to the October application. It should have been readily apparent to him by then that he would not be entitled to pursue that application without establishing a status as a respondent to the application, a status he did not pursue, and furthermore that he was pursuing relief apparently on behalf of some only of the Mirning People and without the authorisation of all the Mirning People to do so.

43    Although it might be fairly said that the same two factors applied in relation to the initial application, I think the position is a little different by reason of Mr Miller seeking the material covering the process of authorisation itself. He did not pursue that application, but received it through the affidavit of Mr Linde. I consider it would be too difficult to isolate that element of the initial application to warrant there being some partial order for costs in relation to the initial application, so in my discretion I make no order on the initial application.

44    The applicant then seeks that costs of the October application be payable on an indemnity basis. The relevant principles are set out in Colgate-Palmolive referred to above.

45    In this matter, I do not propose to make an order for general indemnity costs. That is because I do not really have a clear picture about what is involved. Whilst I do not suspect for one moment that SANTS would inflate its recoverable costs by reason of such an order, where the costs to be charged (hourly rates, item rates or as the case may be) are not shown to have been agreed as part of the undertaking of the work by SANTS on behalf of the applicant under a costs agreement, it is not possible to have any real understanding of the potential difference between indemnity costs and ordinary party and party costs. Accordingly, whilst in general respects, I think the circumstances otherwise qualify the applicant for an order for indemnity costs, I will confine the order for indemnity costs to those disbursements reasonably incurred by SANTS in and incidental to the conduct of the October application, and its costs of and incidental to the October application are fixed in the normal party and party basis.

COSTS AGAINST MR MILLER IN FAVOUR OF THE STATE

46    The State seeks a cost order against Mr Miller for costs incurred in preparing for the hearing of the final version of Mr Miller’s orders on 8 November 2013: FWC No 6.

47    In that hearing, Mr Miller re-litigated issues that I already determined in FWC No 4: see FWC No 6 at [35]-[37]. My reasons above are equally applicable to the State’s claim. Mr Miller did not seek to become a respondent party to the application or present evidence to show that he was authorised by the Mirning People as a whole (as that subgroup of the claim group) to make the October application. In addition, although I did not deal with those issues conclusively, Mr Miller re-raised much the same issues as in the initial application without providing new evidence or circumstance, and such submissions had no reasonable chance of success given that his status quo had not changed.

48    I find such conduct to be unreasonable and caused the State to incur unnecessary costs. Accordingly, I order costs on a party and party basis against Mr Miller in favour of the State for costs incurred in and incidental to the October application. That is expressed in slightly different terms than the costs order sought by the State, but it is desirable that the costs orders should be consistent and I do not consider that the order so expressed would result in any materially different entitlement to costs for the State than it asked for.

COSTS AGAINST MR CAMPBELL

49    The applicant seeks a cost order against Mr Miller’s legal representative, Mr Campbell of and incidental to the October application.

50    Section 43(3)(f) of the FCA Act confers jurisdiction to the Court to make cost orders against a party’s lawyer.

51    Section 37N(2)(b) of the FCA Act imposes a duty on the lawyer to assist their client to comply with the duty outlined in s 37M(1) of the FCA Act, that is, to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. A serious dereliction of duty or serious misconduct by the lawyer may result in costs orders against the lawyer: Kuek [2012] FCA 494 at [27]. This may include situations where the lawyer used the Court’s process for an improper or ulterior purpose: see Anderson on behalf of the Wulli Wulli People v State of Queensland (No 2) [2012] FCA 339 per Collier J at [12]; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 229-230, 236, 239.

52    The October application was dealt with in my reasons for judgment in FWC No 6. Essentially, I refused to grant orders sought because Mr Miller had no standing to seek the orders sought: FWC No 6 at [33]. Even if Mr Miller had standing to seek those orders, I would have refused them because the orders sought had already in effect been refused previously: see FWC No 6 at [34]-[37]; FWC No 4. As I have pointed out above, there is no basis in Mr Miller’s material to show he was authorised by the Mirning People as a group to make the application. Mr Miller sought to call several witnesses to support his factual contentions. I refused to allow counsel for Mr Miller to call the witnesses because no proper notice was given of Mr Miller’s intention to call them. In any event, their proposed evidence would not have advanced his argument beyond the general assertion of the inter-relationship between land and waters: FWC No 6 at [70].

53    It was no raised during the hearing of the October application that Mr Campbell was acting in breach of his duty under s 37N(2)(b). However, it is the applicant’s contention now that a costs order ought to be made against Mr Campbell on the basis that he should have known that the orders sought by Mr Miller had no real chance of success and that there were alternative avenues under the NT Act to address Mr Miller’s concerns. In the alternative, the applicant submits that Mr Miller’s intention to call several witnesses without proper notice amounts to an abuse of process and a serious dereliction of duty in preparing for a hearing on behalf of Mr Campbell.

54    For the reasons that follow, I reject those submissions.

55    The Applicant did not formulate or provide any detailed particulars as to the actual conduct of Mr Campbell which was said to justify the exercise of the power to award costs against him. Identification of the relevant conduct with particularity is necessary: see Lemoto v Able Technical Pty Ltd and Ors (2005) 63 NSWLR 300 at [92]. That is not intended as a criticism of the applicant. It is simply to point out that the solicitor-client relationship meant that Mr Campbell was not in a position to disclose, and so the applicant was not in a position to know, what instructions were given to Mr Campbell, what advice he gave to Mr Miller, when he requested and when he was given evidentiary or potential evidentiary material, or what he was told may be forthcoming.

56    Counsel for Mr Campbell contends that the re-litigation of issues outlined in FWC No 4 would not have amounted to an abuse of process because it was not finally determined at the time. There is merit to that submission. Although some of the orders sought by Mr Miller in the October application were almost identically worded and identical in substance to those previously sought in FWC No 4, I decided not to reconsider the issues on the lack of new relevant circumstances occurring since that decision: FWC No 6 at [35]-[36]. When that position emerged to Mr Campbell is not known. It is not clear when he knew of that position, or whether for example he had reason to think that significant additional material would be available.

57    Those matters are, in my view, sufficient to refuse to make the orders sought. In any event, I would not find that Mr Campbell had an ulterior or improper purpose: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. There is no evidence that Mr Campbell failed to give consideration to the legal and factual questions involved in the presentation of the case so as to be seriously derelict in his duties: Anderson on behalf of the Wulli Wulli People v State of Queensland (No 2) [2012] FCA 339 at [12].

58    For those reasons, I reject the applicant’s submission that a costs order ought to be awarded against Mr Campbell.

ORDERS

59    I accordingly order that:

(1)    Mr Miller pay to the applicant costs of and incidental to his interlocutory application of 30 September 2011 and as amended on 30 October 2013, from and including 30 October 2013, to be assessed on a party and party basis save for the disbursements reasonably incurred by the applicant which are to be taxed on an indemnity basis.

(2)     Mr Miller pay to the State its costs of and incidental to his interlocutory application of 30 September 2011 and as amended on 30 October 2013, from and including 30 October 2013, to be assessed on a party and party basis.

Associate:

Dated:    18 June 2014