FEDERAL COURT OF AUSTRALIA

Little on behalf of the Djaku:nde People v State of Queensland [2015] FCA 287

THE COURT ORDERS THAT:

1.    The applications for costs by Queensland South Native Title Services and the Wulli Wulli and the Wakka Wakka Peoples Respondents are dismissed.

2.    No order as to costs in respect of the proceedings, including in that regard, no order as to costs in respect of the applications for costs.

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

REASONS FOR JUDGMENT

1    On 8 December 2014, Mr Bruce Little, Miss Florence Chambers, Mr Reggie Little, Miss Valerie Pickering, Miss Francis Conlon, Mr Vernon Little and Mr Brian Little, in their capacity as what the Native Title Act 1993 (Cth) (Native Title Act) terms, “the Applicant” (Djaku:nde Applicant), and on behalf of a native title claim group comprising the Djaku:nde People, filed an application for the determination by the Court under s 61(1) of that Act (Djaku:nde Claim). The land in respect of which native title was claimed comprises a large swath of land lying to the west and south west of the towns of Murgon, Gayndah and Mundubbera and includes the Cherbourg Aboriginal Reserve. The claim area overlaps with the land claimed in the following native title applications:

(a)    QUD311 of 2011 – Wulli Wulli People #2 Claim;

(b)    QUD621 of 2011 – Wakka Wakka People #3 Claim;

(c)    QUD91 of 2012 – Wakka Wakka People #4 Claim; and

(d)    QUD93 of 2012 – Wakka Wakka People #5 Claim.

2    On 6 February 2015, at the request of the Djaku:nde Applicant, the native title application was dismissed. That dismissal obviated the need to hear and determine, save in respect of costs, applications for summary dismissal which had been filed by the following respondents, the Wulli Wulli and Wakka Wakka Peoples and, separately, by Queensland South Native Title Services Limited (QSNTS). QSNTS is a representative body for the purposes of the Native Title Act. Parliament has consigned to such bodies, as the Full Court noted in Budby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149 at [26] (Budby on behalf of the Barada Barna People v State of Queensland). These include significant functions in respect of native title applications under s 61 of the Native Title Act: see, especially, s 203BB(1) and s 203BC. One such function, of obvious potential relevance in the circumstances of an apparently overlapping claim such as the present case, is the “dispute resolution function”, a function directed towards the promotion of the informal resolution of disputes, which may be by reference to custom: s 203BF. The area which is the subject of the Djaku:nde Claim falls within the area for which QSNTS provides native title services and has other functions under the Native Title Act. QSNTS acts for the Applicant in the Wakka Wakka Peoples Nos #3, 4 and 5 Claims.

3    QSNTS (because of its representative body functions) and the Wulli Wulli and the Wakka Wakka Peoples were joined as respondents on 12 December 2014. That was the first return date in Court of the native title application. At that time, I also ordered that the application be referred to the Registrar for intensive case management and, because of its overlapping claim dimension, case managed together with the Wulli Wulli People #2 Claim and the Wakka Wakka Peoples Nos #3, 4 and 5 Claims. Provision was also made on 12 December 2014 for the filing, by 29 January 2015, of such summary determination application as a respondent might deem fit with any such application to be returned for directions on 6 February 2015.

4    As to costs, the position of QSNTS came, by amendment to its interlocutory application, to be that:

(a)    Mr Peter Hwang pay the costs of and incidental to the proceeding, including the summary dismissal application on an indemnity basis; or, if not

(b)    the Djaku:nde Applicant pay those costs but on a party and party basis.

5    For their part, the position of the Wulli Wulli and the Wakka Wakka Peoples with respect to costs came to be:

(a)    either or each of the Djaku:nde Applicant and Mr Peter Hwang pay the costs of and incidental to the proceeding, including the summary dismissal application on an indemnity basis; or

(b)    such other order as to costs as the court deemed appropriate.

6    Mr Peter Hwang is a solicitor and a member of the firm Dowd and Company Lawyers (Dowd & Co). Dowd & Co are the solicitors on the record for the Djaku:nde Applicant and also acted for that applicant before the filing of the application. That firm’s involvement with the Djaku:nde Applicant commenced in late November 2014.

7    The only other respondent, the State, did not seek any order for costs. It neither supported nor made submissions in opposition to the costs applications which were made.

8    Unless it notifies the Court that it does not wish to be a party, the State or Territory within which the claimed area falls is always a respondent party to a native title claimant application: s 84(4), Native Title Act. Especially given their role as model litigants and their pervasive land management responsibilities, States or, as the case may be, Territories play, or ought to play, a uniquely important role in native title litigation. In responding to a native title claimant application, a State or Territory acts in the public interest. The responsible assessment by these bodies politic and, where its interests are affected, the Commonwealth, of issues such as connection and extinguishment can be influential in relation to the stance adopted by other respondents, as well as an applicant.

9    Further, because they are usually, if not invariably, respondents, States or, as the case may be, Territories, have a very particular interest in practice and procedure under the Native Title Act. Given this, it would not, in my view, have been inappropriate, even though the State did not seek costs, for the State to assist the Court by dispassionately adverting, or at least offering to advert, to such matters of principle, practice and procedure raised by the facts as the State considered were pertinent in relation to the awarding of costs. In the circumstances of this case, that might perhaps also have served the useful purpose of tempering the zeal with which other respondents prosecuted an application for costs, even after the Djaku:nde Applicant sought, in a timely way, the dismissal of the native title application. It is to be remembered that, when a State or Territory is a party to proceedings in this Court, neither the body politic nor its lawyers are exempt from the obligations specified in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act).

10    The Wulli Wulli and the Wakka Wakka Peoples filed an application for summary dismissal on 20 January 2015. QSNTS filed an application for summary dismissal on 23 January 2015. Each of these interlocutory applications was amended but only so as to refine the orders as to costs sought by each particular applicant.

11    On its filing and in accordance with the requirements of s 63 of the Native Title Act, the native title application was referred by this Court’s Registrar to the Native Title Registrar. On 30 January 2015, a delegate of the Native Title Registrar concluded that the application should not be accepted for registration on the Register of Native Title Claims maintained under the Native Title Act, because the claim did not satisfy all of the conditions found in s 190B and s 190C of that Act. That advice was conveyed to Mr Bruce Little by the delegate that day. On the evidence before me, Mr Bruce Little is, within the group of persons who comprise the Djaku:nde Applicant, the person who usually has acted as spokesperson for the purpose of dealing with Dowd & Co and with the Native Title Registrar.

12    A discretionary power to award costs is conferred on the Court by s 43 of the Federal Court of Australia Act. In relation to a proceeding of the present kind, the exercise of that discretion is affected by s 85A of the Native Title Act. That section provides:

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.

In Oil Basins Limited v Watson [2014] FCAFC 154 at [115], the Full Court cited with apparent approval a summary which the primary judge in that case had offered in relation to the meaning and effect of s 85A of the Native Title Act and how that section interplayed with s 43 of the Federal Court of Australia Act:

(1)    Section 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 Federal Court of Australia Act 1976 (Cth) (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.

(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, as observed in Reid v State of South Australia [2007] FCA 1479 at [54].

See Cheedy v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23; Ward v State of Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305; De Rose v State of South Australia (No 3) [2005] FCAFC 137; McKenzie v State of South Australia [2006] FCA 891; and Reid v South Australia.

13    Also relevant, because the present proceeding is a civil proceeding, is s 37N of the Federal Court of Australia Act:

37N    Parties to act consistently with the overarching purpose

(1)    The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2)    A party's lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party's behalf:

(a)    take account of the duty imposed on the party by subsection (1); and

(b)    assist the party to comply with the duty.

(3)    The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:

(a)    the likely duration of the proceeding or part of the proceeding; and

(b)    the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

(i)    the costs that the lawyer will charge to the party; and

(ii)    any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

(4)    In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

(5)    If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client.

14    Section 37M of the Federal Court of Australia Act defines the “overarching purpose” in this way:

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court's overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)    The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)    the Rules of Court made under this Act;

(b)    any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

15    These provisions of the Federal Court of Australia Act have a particular resonance in native title matters for, as the Full Court observed in Budby on behalf of the Barada Barna People v State of Queensland, at [42]:

One of the procedural premises in the Act is that it is desirable for applications to be resolved by negotiation if possible… That is also consistent with the obligations of all litigants under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

16    The Court’s power to award costs extends to the awarding of costs on an indemnity basis. The categories of case in which costs will be awarded on this basis are not closed for, when all is said and done, there is a discretion to be exercised judicially according to the circumstances of a particular case. This acknowledged, there are particular categories of case which have in the past been regarded as warranting an order that costs be paid on an indemnity basis. These and the rationale for the awarding of costs on this basis are the subject of an enduringly helpful exposition by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive v Cussons). Those categories include cases where proceedings have been commenced or continued in disregard of known facts or clearly established law: Colgate-Palmolive v Cussons, at 233.

17    Colgate-Palmolive v Cussons was decided prior to the enactment of either ss 37N and 37M of the Federal Court of Australia Act and s 85A(2) of the Native Title Act. There is obvious scope for overlap between the categories of case identified in Colgate-Palmolive v Cussons which have in the past seen an award of costs on an indemnity basis and criteria made relevant by s 85A(2) of the Native Title Act in relation to whether or not to depart from the position that each party to a native title proceeding ought ordinarily to bear its own costs. Even so, it does not, in my view, follow that, in every case in which one reaches the conclusion that there should be a departure from this position, costs must be awarded on an indemnity basis. Each case, must, as I have already observed, turn on its own facts and there are doubtless questions of degree involved. In like fashion, there is scope for overlap between categories of case where indemnity costs have in the past been thought warranted and a departure by a party or that party’s lawyer from the “overarching purpose” described in s 37M of the Federal Court of Australia Act. Once again, it does not follow that every such departure must sound in an award of indemnity costs.

18    The Court’s power under s 43 of the Federal Court of Australia Act to award costs extends to the awarding of costs against a non-party, including a solicitor: Knight v F P Special Assets Ltd (1992) 174 CLR 178. By virtue of s 37N(2), a lawyer acting for a party in a native title proceeding, no less than in other civil proceedings, must take into account the duty which falls on a party under s 37N(1) and assist that party to comply with that party’s duty. Cases where a lawyer is in breach of that duty may well overlap with circumstances where, prior to its enactment, costs were awarded against a lawyer. But past jurisprudence ought not to lead to the making of a priori assumptions about when it will be apt to award costs against a non-party such as a lawyer, having regard to the duty created by s 37N(2). Here, too, the power must be exercised according to the merits of the case to hand.

19    So much for the nature and extent of the power to award costs in a case such as the present. It is necessary now to say something about the operation of the Native Title Act in the circumstances of this case and then to examine the behaviours of the several parties, including the State.

20    The Djaku:nde Applicant was not required, when filing the native title application, to include in the application a body of evidence which, if adduced at trial, would be necessary to secure a determination of native title in respect of the claim: Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317. All that s 62(2)(e) of the Native Title Act required was a general description of the factual basis of the claim.

21    Even so, the consideration by the Native Title Registrar under s 190A of the Native Title Act of an application, any accompanying affidavit and any prescribed documents, after copies of these are given to that official by this Court’s Registrar pursuant to s 63 of that Act is always an important and sometimes a terminal stage in the progress of a native title application. If the claim made in the application meets the applicable requirements specified in s 190A(6) of the Native Title Act, the Native Title Registrar must accept it for registration on the Register of Native Title Claims kept by that official under s 190 of that Act. These requirements impose what is aptly described as a “test for registration” (registration test).

22    In this case, if the claim had been registered, the Djaku:nde Applicant would have become, in terms of the Native Title Act, a “registered native title claimant”. The Native Title Act confers on registered native title claimants rights to negotiate and enter into indigenous land use agreements. These rights can be valuable, so valuable sometimes that the incentive to prosecute to finality or, in the case of a respondent who has secured by agreement and payment of compensation an ability freely to undertake a desired “future act”, defend, a native title application are diminished.

23    This apart and materially for the purposes of the consideration of the costs application, if this Court’s Registrar gives the application and other documents to the Native Title Registrar under s 63 of the Native Title Act, s 66 of that Act obliges the Registrar, as soon as reasonably practical also to give a copy of that application and those documents to:

(a)    the Premier or Chief Minister other nominated Minister of each State or Territory within which the land subject to the native title claim is located: s 66(2); and

(b)    any representative bodies for the area subject to the native title claim: s 66(2A).

24    In this fashion, the State and QSNTS came to be notified of the Djaku:nde Claim. Further, because QSNTS acts for them, so too, in this fashion did the applicant in the Wakka Wakka Peoples Nos #3, 4 and 5 Claims necessarily come to know of the filing in Court of the native title application.

25    A private firm of solicitors with the imaginative firm name “Just Us Lawyers” acts for the applicant in the Wulli Wulli People #2 Claim. That firm and, within it, a solicitor, Mr Besley, came to know of the native title application because, on 8 December 2014, the firm was given a sealed copy of the application by Mr Wishart, who is the Principal Legal Officer in QSNTS. This Mr Wishart was entitled to do.

26    As an aside, it originally appeared, in response to an inquiry by me of him in the course of the hearing, that Mr Besley’s name was not on the register of practitioners (High Court roll) kept by the Registrar of the High Court pursuant to s 55B of the Judiciary Act 1903 (Cth) (Judiciary Act). Upon Mr Besley’s closer investigation, it transpired that he had obtained the entry of his name on the High Court roll in 2008 but had not at the time sought a certificate to that effect from the High Court’s Principal Registrar and had answered on the basis of not holding a certificate. A certificate is a useful means of proving that one’s name has been entered on the High Court roll but it is the entry which is the relevant pre-requisite. For those in private practice, entry of their name on the High Court roll is a requirement in respect of entitlement to practise in this Court: s 55B(1), Judiciary Act. The absence of a solicitor’s name from this roll can affect a client’s entitlement to claim costs in respect of work performed by that solicitor: Guss v Veenhuizen (No 2) (1976) 136 CLR 47. The entry of Mr Besley’s name on the High Court roll means that he was entitled to practise in the Court. The incident serves as a reminder for the profession that it is the requirements of the Judiciary Act, not just admission in the State or Territory where a case is being heard, which govern entitlement to practise in this Court.

27    The applicant in each of the Wakka Wakka Peoples Nos #3, 4 and 5 Claims and in the Wulli Wulli People #2 Claim were registered native title claimants in relation to the area covered by the Djaku:nde Claim. As such, the registrar was by s 66(3) of the Native Title Act, obliged to give them a notice containing details of the application but only after the Native Title Registrar had decided, in accordance with s 190A, whether or not to accept the Djaku:nde Claim for registration: s 66(6). Further, the notice given to them under s 66(6) had to state whether or not the claim had been accepted for registration. Apart from registered native title claimants in relation to an area covered by a claim, those to whom this Court’s registrar must give notice after the registration test decision has been made notably include, “any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory” (unless the registrar considers it would be unreasonable to give such a person a notice: ss 66(3)(a)(iv) and 66(5).

28    Notices given under s 66(3) alert a person to the making of a native title application, to the nature of the claim made in that application, to whether or not it has passed the registration test, to the opportunity to become a party to the native title application and to relevant time limits. By sequencing the obligation of the Court’s registrar to give the notice to the classes of person specified in s 66(3) to a time as soon as reasonably practical after the making by the Native Title Registrar of the registration test decision, s 66(6) evinces an intention that, until that decision, that class of potential respondents ought not to be put to the time, trouble and expense of having to react to a native title application and also that the public purse ought not be diminished by the expense entailed in identifying each of those entitled to notice and notifying them.

29    The exception, found in s 66(4), to this evident intention in relation to any possible need, pre-registration test decision, to take a proactive step is in respect of the relevant State or Territory, notified in accordance with s 66(2). Subsection 66(4) of the Native Title Act contemplates that, within 28 days of that date on which that State or Territory is given such notice, it may apply to the Court, “under subs 84C(1) or otherwise” to strike out the native title application. If, in response to any such application, the court strikes out the native title application, the effect of s 66(4), unsurprisingly, is that the Court’s Registrar is also relieved of the obligation to give notice of the native title application to any of the persons mentioned in s 66(3).

30    Subsection 84C(1) of the Native Title Act empowers the Court to strike out a native title application which does not comply with, materially, either or each of s 61 or s 62 of that Act. That power supplements, rather than supplants, other powers which the Court has to bring a native application to an end prior to a trial. Further, s 84C(1) confers standing to make an application on any party to the proceedings, not just on the State or Territory concerned. The point is that it is the relevant State or Territory which Parliament has expressly identified as having a particular role, in the period immediately following the filing of a native title application and prior to the making of the registration test decision, of seeking to bring that application to an early end, whether by virtue of non-compliance with the specific requirements found in s 61 and s 62 of the Native Title Act or on some other basis. That the State or Territory concerned is expressly consigned this role is a particular example of the uniquely important role they play, or at least that Parliament envisages they ought to play, in native title litigation. In this case, the State chose not to bring an application for the striking out of the native title application, either under s 84C(1) or otherwise.

31    That the State chose not to bring a strike out application at a time envisaged by the Native Title Act does not mean that it was not competent for either the Wulli Wulli and Wakka Wakka Peoples or QSNTS so to do. Competency to bring a strike out application is one thing; entitlement to costs in respect of such an application is another.

32    This native title application was allocated a first return date very soon after its filing and prior to the result of the registration test being known. Given that the Djaku:nde Claim overlapped the Wakka Wakka Peoples Nos #3, 4 and 5 Claims and the Wulli Wulli People #2 Claim it seemed desirable that, from the very outset, it be subject to the same intensive case management by a Registrar, which had proved so helpful in the progression of those pre-existing claims, as it has in native title cases generally.

33    In the ordinary course of events, the Native Title Act does not envisage that either a representative body or the applicant in a pre-existing native title application the claim in which is over-lapped by a later filed native title application will seek to be joined as respondents until after that later filed application has been subjected to the registration test. That is not to say that joinder before then is not lawfully possible. Once again, lawful possibility is one thing; entitlement to an award of costs in respect of litigious business commenced before the result of that test is known is another.

34    As to the conditions found in s 190B of the Native Title Act, the delegate of the Native Title Registrar reached the following conclusions in respect of this native title application and the Djaku:nde Claim:

(a)    the claim satisfied s 190B(2) – identification of area subject to native title claim;

(b)    the claim satisfied s 190B(3) – identification of native title claim group;

(c)    the claim satisfied s 190B(4) – identification of claimed native title;

(d)    the claim did not satisfy s 190B(5) – factual basis for claimed native title;

(e)    the claim did not satisfy s 190B(6) – prima facie case in respect of at least some of the native title rights claimed;

(f)    the claim did not satisfy s 190B(7) – physical connection;

(g)    the claim satisfied s 190B(8) no failure to comply with s 61A;

(h)    the claim satisfied s 190B(9) – no extinguishment of claimed native title; and

(i)    the claim did not satisfy s 190C(2) – information required by s 61 and s 62.

35    The delegate gave elaborate reasons for these conclusions. It is not necessary to reproduce these. Common to each of the conclusions in respect of a s 190B condition which the delegate considered was not satisfied was an absence in the application and in the affidavits and documents filed with it of a sufficiently comprehensive factual basis to address the requirements of these conditions. One of those documents (Attachment A to the native title application) was a report by a Mr Ray Martin prepared in August 2014 and entitled, “Anthropological Report on the Djaku:nde Tribe”.

36    As to the conditions in s 190C of the Native Title Act, the delegate’s conclusions were:

(a)    the claim did not satisfy s 190C(2) – information required by s 61 and s 62;

(b)    the claim did not satisfy s 190C(3) – no common claimants in previous overlapping applications; and

(c)    the claim did not satisfy s 190C(4) – identity of claimed native title holders.

37    The reason why the delegate found that the claim did not satisfy s 190C(2) was that the application was not accompanied by an affidavit in the terms required by s 62(1)(a) of the Native Title Act. The delegate reached that conclusion because none of the accompanying affidavits made by the persons who comprised the Djaku:nde Applicant contained a statement under s 62(1)(a)(ii) that, “the applicant believes that none of the area covered by the application is also covered by an approved determination of native title”.

38    The delegate concluded that the claim did not satisfy s 190C(3) because there were apical ancestors in common between the Djaku:nde Claim and the previously registered Wakka Wakka Peoples Nos #3, 4 and 5 Claims and the Wulli Wulli People #2 Claim. The ancestors in common were “Boondooma Billy”, “Jinnie of Hawkwood station, mother of Ranji Logan”. [Lest commonality of surname be thought to have passed unnoticed by me, I should record that I do not share ancestry with Ranji Logan.]

39    As for the condition found in s 190C(4), the delegate concluded that the information provided in and with the application was not sufficient to enable satisfaction that the Djaku:nde Applicant was authorised to make the application and to deal with matters arising in relation to it by all the other persons in the native title claim group. The delegate considered that the case was not one “where the native title claim group as a whole had been extended every reasonable opportunity to participate in an authorisation process via the giving of well publicised notice and assistance if necessary to come to a meeting for that purpose”. The delegate found that the public notice in respect of the authorisation meeting on 20 September 2014 was wanting in that it neither named the apical ancestors nor stated that the purpose of the proposed meeting was to authorise an applicant to make a native title application in respect of the area identified in what became Attachment C to the native title application.

40    It is apparent on the face of the delegate’s reasons that, in reaching these conclusions, the delegate considered and upheld submissions made by the State on 17 December 2014 concerning whether the application met the registration test. It is likewise apparent that the delegate also received but, for reasons which were set out in the delegate’s reasons, declined to consider, a submission from QSNTS. The QSNTS submission was also directed to the non-acceptance for registration of the present native title application.

41    That the State made a submission to the Native Title Registrar in respect of whether the present application satisfied the registration test demonstrates that the State has not abrogated the role which it is envisaged to play in the public interest in native title cases. Rather, it has a value judgement that, at least in the first instance, that role was better served in this case by making such a submission rather than forthwith bringing a strike out application.

42    The Native Title Act expressly contemplates that the State or Territory concerned (and for that matter the Commonwealth) may be a source of information for the Native Title Registrar in deciding whether a claim in a native title application meets the conditions of the registration test: s 190A(3). This operates harmoniously with the State or Territory concerned being one of the initial recipients of a copy of the native title application and related documents immediately after their filing in this Court: s 66(2). The representative body (or bodies) for the area covered by the claim is likewise identified (s 66(2A)) as an initial recipient of such a copy but it is not likewise expressly identified as a source of information for the Native Title Registrar in considering under s 190A the claim made in the native title application. The consideration of a submission by the representative body is not forbidden. Consideration of such a submission would fall within the ambit of the concluding part of s 190A(3) – “and may have regard to such other information as he or she considers appropriate”. This may perhaps be an accidental omission, for one reason for a representative body to be an initial recipient after filing of the native title application and related documents is surely so that the Native Title Registrar can have the benefit of the views of such a body when deciding whether the registration test is met.

43    The State is hardly to be criticised for having chosen to persuade the Native Title Registrar that the Djaku:nde Claim was not one for registration. A failure of the registration test does not automatically mean that a native title application must be dismissed but it prevents its progression by wider notification and gives an applicant pause and cause to consider whether that application ought to be discontinued or dismissed. That is just the effect which the delegate’s decision had in this case. The registration test stage offers the potential benefit, realised in this case, of preventing unnecessary litigation with all of the expense and diversion and consumption of judicial resources that may entail. Nor is QSNTS to be criticised for seeking, via its submission to the Native Title Registrar, to achieve these ends.

44    The Native Title Act offers an applicant in a native title application the claim in which has failed the registration test opportunities to seek the review of that decision by the Native Title Tribunal or this Court: see s 190E and 190F respectively. The Djaku:nde Applicant did not seek to engage either of these review options following the communication to it of the delegate’s decision in respect of the registration test. Instead, what the Djaku:nde Applicant did was, initially to seek to discontinue the native title application and, in the end, to seek its dismissal.

45    The representative role undertaken by an applicant in relation to a native title application means that an applicant must always seek the leave of the Court to discontinue an application: r 26.12(4), Federal Court Rules 2011 (Cth). That the initial return date for the native title application had, by the time when the registration test decision was made, passed, provided, in the circumstances of this case, an additional reason why the Djaku:nde Applicant could not discontinue the application without the leave of the Court. The earliest available opportunity for the Djaku:nde Applicant to do this was 6 February 2015, in the very first week after the conclusion of the Court’s summer non-sitting period. The subject of leave to discontinue never had about it in this case an urgency which would have warranted the seeking of a special fixture so as to seek the hearing of an application for leave to discontinue during that period.

46    On the facts recited thus far, all that has occurred is that an applicant who has the benefit of legal representation, faced with an adverse registration test decision and the prospect of permissibly brought striking out applications being prosecuted if the proceedings are not ended, has chosen the earliest available opportunity initially to seek leave to discontinue but, in the end, instead to seek and obtain the dismissal of the proceedings. Why, in these circumstances, one might ask rhetorically, is this a case not just for removing the expectation that costs will follow the event but also for awarding costs on an indemnity basis and perhaps against the very legal advisers whose services have resulted in this outcome?

47    The answer to this question was said by those seeking costs to lie in other conduct on the part of the Djaku:nde Applicant and Mr Hwang.

48    Neither QSNTS nor the Wulli Wulli and Wakka Wakka Peoples submitted that the Djaku:nde Applicant had an ulterior motive in bringing the native title application, perhaps in the nature of a specious, “spoiler” application, made late and certainly long after the end of the notification periods with the design of disrupting the orderly progress of the claims made by them towards consent determination or trial.

49    Instead, reference was made to correspondence which both QSNTS and Just Us lawyers had directed to Dowd & Co over the course of the December 2014 to early February 2015 (prior to 6 February) period in which like deficiencies which came to be found to exist by the delegate in applying the registration test were highlighted and the bringing (and then pressing) of a dismissal application in which costs would be sought was foreshadowed in the event that the native title application was not terminated by the Djaku:nde Applicant.

50    It was also put that Mr Martin, whose report was relied upon and accompanied the native title application on its filing had not, in a past proceeding in the court, been regarded as an expert. The case and the finding which were specified was Wyman on behalf of the Bidjara People v State of Queensland # 6 (QUD 245 of 2011, 5 April 2013, unreported) in which, in the course of an unpublished interlocutory judgement, Jagot J had concluded:

I am satisfied that there is no material which establishes that Mr Martin has specialised knowledge in the field of anthropology. I’m also satisfied that there is no material which shows that the opinions which you [sic] have expressed are wholly or substantially based upon such specified knowledge. In these circumstances, Mr Martin’s reports cannot be admitted under the exception to the opinion rule in section 79. It necessarily follows that they are inadmissible. …

51    It was asserted in the course of correspondence which drew this ruling to his attention (QSNTS letter of 6 January 2015 to Dowd & Co) that Mr Hwang was aware of the ruling in respect of Mr Martin. There was no direct evidence that he was aware of it before the ruling was drawn to his attention. Nor, given that the ruling was neither reported nor published other than in the form of ex tempore reasons could it reasonably be concluded that Mr Hwang ought to have been aware of the ruling. It is also to be remembered that the ruling bound only the parties to the proceedings in which it was made with any question as to Mr Martin’s expertise, if raised, being one for fresh adjudication in these proceedings.

52    That is not to say that the ruling made by Jagot J concerning Mr Martin is completely irrelevant to the costs applications. QSNTS and, in particular, its Principal Legal Officer, Mr Wishart, were aware of the ruling. That awareness doubtless served, along with other features of the native title application that were highlighted to Dowd & Co in correspondence, to inform their thinking that the native title claim made in that application faced very particular difficulties. It was entirely proper for QSNTS to draw the ruling and those other features to the attention of Dowd & Co. Though it was not binding in later proceedings, the ruling was certainly one for Dowd & Co responsibly to take into account in advising the Djaku:nde Applicant about whether the native title application should continue to be prosecuted. In the absence of further evidence about his knowledge and expertise, the ruling sounded a cautionary note for any practitioner about the prospect that an objection in the present case as to the admissibility of Mr Martin’s opinions might be upheld. It is not for me to draw inferences about legal advice given by Dowd & Co to the Djaku:nde Applicant after this ruling was drawn to that firm’s attention. It is though a fact that the application which came to be made for the dismissal of the application came after QSNTS drew the ruling and those features to the attention of Dowd & Co. It is hardly unreasonable conduct on the part of either the Djaku:nde Applicant or Mr Hwang personally that an application for leave to withdraw and then dismissal followed at a time which I regard being as soon as reasonably practical after this.

53    Unbeknown either to QSNTS or to Just Us Lawyers, Mr Hwang had unexpected occasion between 7 and 17 December 2014 to travel to Singapore to attend a week-long funeral observance. It was while there that on 9 December 2014, via email received from Just Us Lawyers, he was altered to the prospect of a strike out application and to the claims overlap. He drew this to the attention of Mr Bruce Little and to another member of the Djaku:nde Applicant, Mr Reggie Little on 9 and 10 December 2014, provided advice in relation to the letter, sought instructions (which he was advised would require Messrs Bruce and Reggie Little to consult with others) and informed them that he would not be able to give more detailed advice about the matters raised before he returned to his office.

54    The first return date occurred while Mr Hwang was in Singapore. On Mr Hwang’s instructions, Ms Spence of Counsel appeared for the Djaku:nde Applicant. Later, on 15 December 2014, Ms Spence received directly from Just Us Lawyers a letter which suggested that the native title application should be “withdrawn”. She relayed this forthwith to Mr Hwang, then still in Singapore. For reasons already given, the native title application could not be withdrawn without the leave of the court.

55    The withdrawal of the application formed the basis of numerous conversations which Mr Hwang had with Mr Bruce Little in the period which followed his return to Australia on 17 December 2014 up until when he went on leave on Christmas Eve. Mr Hwang took leave between 24 December 2014 and 9 January 2015. It is the very longstanding practice of the courts, widely known in the legal profession, for most of the judiciary and registry staff to take leave from duty over this period with only urgent business being undertaken. In conformity with this practice, it is likewise the very longstanding practice within the legal profession for practitioners also to take leave during this period. It hardly counts against Mr Hwang that he did not vary his planned leave. In the circumstances prevailing in relation to the native title application, no responsible practitioner familiar with the practice of this court would have put to a registrar of this court that, with a directions hearing date already fixed to occur before the docket judge in the first week of term in 2015, there was some over-riding urgency about this matter which warranted a leave to discontinue application being considered by a vacation judge.

56    Over the period Mr Hwang was on leave, QSNTS’ letter of 6 January 2015, already referred to, was received by Dowd & Co. In this letter also it was put that the native title application should be withdrawn. No time frame within which this might occur was put. I infer, because I know him to be an experienced legal practitioner, that Mr Wishart, who was the author of the letter, did not put that an application for leave to discontinue should be made during vacation, because of his familiarity with the practice of the Court.

57    As it was, even during his period of leave, Mr Hwang had repeated telephone conversations with Mr Bruce Little which covered, amongst other things, the withdrawal of the native title application.

58    After Mr Hwang returned from leave, he saw, on 13 or 14 January, 2015, correspondence which had been received from the Native Title Registrar on 5 January 2015, sent in the course of the consideration of the Djaku:nde Claim in the native title application. On 15 January 2015, a further letter from QSNTS sent that day and foreshadowing the bringing of a strike out application and the reasons for that came to Mr Hwang’s attention. He replied, advising that he was seeking instructions. This he most certainly was then doing and continued throughout January to do from the Djaku:nde Applicant’s principal spokesman, Mr Bruce Little. In the course of this, Dowd & Co received the strike out applications, returnable for mention on 6 February 2015. These also were not ignored by Mr Hwang. He sought instructions from Mr Bruce Little concerning them, the withdrawal of the native title application and foreshadowed that Dowd & Co would seek leave to withdraw as solicitor on the record for the Djaku:nde Applicant.

59    On the evening of 23 January 2015, Mr Hwang received a telephone call from Mr Bruce Little in the course of which the withdrawal of the native title application was discussed. On 27 January 2015, Mr Hwang caused Dowd & Co to send to Mr Bruce Little a notice of intention to cease to act in the form required by this Court’s rules. That same day, he advised both Just Us Lawyers and QSNTS that he did not have instructions to act for the Djaku:nde Applicant. The following day, Mr Hwang had a candid discussion with Mr Besley of Just Us Lawyers on the subject of an endeavour to persuade the Djaku:nde Applicant that the native title application was one for withdrawal. He had a telephone conversation to similar effect with Mr Wishart of QSNTS on 29 January 2015.

60    On 3 February 2015, Mr Hwang received instructions, including the provision of funds, which enabled him to brief Ms Spence to appear on 6 February to seek leave for the discontinuance of the native title application. He advised both QSNTS and Just Us Lawyers of his receipt of instructions to take this course on 4 February 2015. That day, QSNTS advised that it intended to seek costs against Mr Hwang personally. This particular course had not earlier been foreshadowed. Also that day, Just Us Lawyers foreshadowed that costs would be sought but did not make reference to the seeking of costs against Mr Hwang. As it was, the precise orders sought in respect of costs were only settled in the course of oral submissions on 6 February 2015.

61    Unbeknownst to Mr Hwang until 3 February 2015, Mr Bruce Little had not been idle during January 2015 as a sequel to the advices which he had received from Mr Hwang. Mr Bruce Little had been seeking, since about 15 January 2015, to obtain authorisation from the several other persons who, with him comprised the Djaku:nde Applicant to withdraw the native title application. Mr Bruce Little had also contacted the office of the Native Title Registrar on 22 January 2015 seeking to withdraw the native title application. That office had advised him, correctly in my view, that it was charged with the statutory duty of considering the application for the purposes of the registration test. It was for the Court, not the Native Title Registrar or, for that matter, the National Native Title Tribunal to grant leave to the Djaku:nde Applicant to discontinue the native title application.

62    In theory, the Native Title Registrar might have been requested to defer the further consideration of the claim, pending the hearing and determination of a leave to discontinue application on 6 February 2015. There are time limits which apply to the consideration of a claim by the Native Title Registrar for the purpose of compliance with the registration test but, so proximate was the next court date, that registrar might lawfully have agreed to pause consideration at least until then. Mr Bruce Little, a layman, is hardly to be criticised for not appreciating that this course might have been followed or that it was only for the court to grant leave to discontinue. Discontinuance or dismissal of the application would have terminated the Native Title Registrar’s obligation to consider the claim in the native title application. As it was, the registration test decision made by the delegate on 30 January 2015 and the comprehensive reasons for that decision may well have served the useful purpose of underscoring for the persons who comprised the Djaku:nde Applicant advice which had already been tendered by Dowd & Co via Mr Hwang.

63    Something also needs to be said about Mr Hwang’s involvement with the native title application prior to its filing. That involvement occurred over a compressed period, given that his instructions as at 5 December 2014 were that it needed to be filed urgently. Neither Mr Hwang nor Messrs Bruce or Reggie Little knew at that stage of the earlier ruling by Jagot J in relation to the admissibility in that case of Mr Martin’s opinions. As representative of a prospective applicant and, separately as their legal adviser, each of them was faced with opinions expressed in the report of a professed expert that were favourable to the existence of a claim for native title. As it happened, when subjected to rigorous scrutiny by the delegate deficiencies in the report became manifest. Even taking into account Mr Hwang’s professed experience in native title matters, I can well see how a practitioner in receipt of instructions to file the application urgently and who knew from experience that the application would not progress until it had passed the registration test might have chosen to act on the instructions received and cause the native title application to be filed.

64    Mr Hwang’s evidence as to the scrutiny to which he subjected the application in the time available was not challenged. It was hardly a cursory scrutiny. He did identify potential difficulties in the conduct, or at least in the evidencing of the conduct of the authorisation meeting. He did seek further evidence on that subject before the native title application was filed.

65    Mr Hwang did consider the adequacy of the public advertisement of the authorisation meeting but concluded that it was sufficient. That advertisement ought to have referred to the apical ancestors. Had it done, the overlap in apical ancestry with existing registered claims might have been exposed at an early stage. I doubt that Mr Hwang will in the future regard such a notice as adequate. As it was at the time though, I can well see how he might have regarded the reference to the Djaku:nde People as sufficient, at least for the purpose of an application being progressed to the point of the registration test.

66    On the basis of the draft application and supporting materials with which he was presented, I do not consider that it was unreasonable for Mr Hwang to conclude that Mr Bruce Little in particular as spokesman and those who comprised the Djaku:nde Applicant in general were able to give him instructions to file the native title application.

67    The native title application was prepared in draft by Mr Martin and then presented to Mr Hwang. The Native Title Act contemplates that a representative body such as QSNTS may assist persons who wish to bring a native title application. It does not provide that such bodies are to be the only source of assistance. Even so, for a person consulted as an anthropologist to step beyond his or her field of expertise and assist in the drafting of an application is fraught with the risk of compromising the role of that person as one whom one might expect to undertake the role of expert witness in this Court. That is so even though the temptation may be a strong one to assist laypersons whom one has come to know, in the course of preparing an anthropological report, have a very particular affinity with a certain area of land and believe that they have particular rights in respect of that land. That a draft of the application was prepared by Mr Martin does not, of course, absolve Mr Hwang from a responsibility separately to consider its adequacy prior to the institution of proceedings. In fairness, Mr Hwang did not assert this.

68    Even were I to conclude that Mr Hwang had been wanting in his conduct in relation to the bringing of the application, a question would still remain as to whether any costs should be ordered.

69    As I have already observed, the strike out applications were permissible but neither was made by a party expressly contemplated by the Native Title Act as one who might bring such an application prior to the registration test stage. In seeking joinder and then in filing these interlocutory applications prior to the result of the registration test being known, and prior to the stance which the Djaku:nde Applicant would take in light of the result of that test being known, those who filed the strike out applications put themselves in the position of being able, if needs be, of moving for summary dismissal at the earliest available opportunity thereafter. Further, the prospect and then the reality that such applications would be filed doubtless had the forensic advantage of reinforcing to the Djaku:nde Applicant that the suggestion that the proceedings should be withdrawn for the reasons given in correspondence was not an idle one.

70    There was though a risk in seeking joinder and in bringing the applications at the particular time when they are filed. That risk was that the Djaku:nde Applicant might indeed seek discontinuance. QSNTS and the Wulli Wulli and the Wakka Wakka Peoples could have promoted that any strike out applications be filed a short time after the registration test result was known with the next directions hearing being deferred until, for example, mid-February and perhaps time then set aside for the hearing of any strike out application. They chose themselves to incur the costs of a course of action which would maximise the pressure on the Djaku:nde Applicant to bring the proceedings to an early end but chose to put that in train before reaction to the registration test result was known. Even in the face of the orders made in December 2014, it would still have been possible in correspondence with Dowd & Co to indicate that they still proposed to seek the striking out of the native title application but would, on 6 February 2015, seek the extension of time for the filing and service of any such that application until, for example, not less than a week after the result of the registration test.

71    Just because a particular forensic strategy is permissible in law does not mean that it is necessary to embark upon it. One of the purposes behind s 37N and s 37M of the Federal Court of Australia Act is to induce such thinking on the part of litigants and those advising them.

72    I am firmly of the view that the Djaku:nde Applicant acted as soon as reasonably possible to bring these proceedings to an end. I am likewise of the view that Mr Hwang did all that might reasonably have been expected of a legal practitioner, in the circumstances described, to achieve that end. I am also firmly of the view that the costs of and incidental to the striking out applications and the preceding joinder were prematurely incurred by QSNTS and the Wulli Wulli and the Wakka Wakka Peoples. Because of that, even if I were otherwise disposed to regard the conduct of the Djaku:nde Applicant as warranting a departure from the usual expectation in a native title case (and I am not), I would not award costs in respect of these matters. And the same would apply even if I were to regard Mr Hwang’s conduct as otherwise warranting the course of awarding costs against him personally.

73    Though I might have wished for submissions from the State on matters of practice and procedure, I regard the conduct of the State in the circumstances of this case as responsible and well-befitting a model litigant. Rather than bringing a potentially unnecessary strike out application, it has subjected the native title application to objectively detached analysis and then chosen to make a considered submission to the Native Title Registrar as to whether the claim in it meets the registration test. This is a course expressly envisaged by the Native Title Act. By adopting it, the State chose a course which potentially and in this case in fact avoided the expenses of litigation associated with a strike out application, the hearing of which might have proved to be unnecessary.

74    If, in the face of the result of the registration test and in light of the notice of alleged deficiencies which had been given before then to the Djaku:nde Applicant, represented by Mr Hwang, had chosen to persist with the prosecution of the native title application such that a hearing and determination of the strike out applications became necessary, there may well have been a very different outcome in respect of costs.

75    As it happens, this did not occur and, for the reasons given, what did occur should not sound in a departure from the usual expectation as to costs in a native title proceeding.

76    The applications for costs should be dismissed. I make no order as to costs either in respect of those applications or the native title application itself.

Associate:    

Dated:    31 March 2015