FEDERAL COURT OF AUSTRALIA

Boney v Attorney General of New South Wales (No 2) [2018] FCA 1241

ORDERS

THE COURT ORDERS THAT:

1.    Each party bear their own costs of the interlocutory application.

2.    The applicant pay the costs of the Current Applicant, if any, thrown away by reason of the amendments.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    These reasons concern the costs of an interlocutory application.

2    On 18 July 2018 I made orders as follows:

1.    Subject to order 3, leave be granted to amend the application for leave to appeal and the draft notice of appeal in accordance with the forms accompanying the letter of Jarratt Webb & Barrett dated 15 June 2018 to the Registry.

2.    The interlocutory application dated 13 February 2018 be dismissed, without prejudice to the Current Applicant, if so advised, raising the issues of the 14 applicants’ standing and the futility of the application for leave before the Full Court hearing the application for leave to appeal and, if leave be granted, the appeal.

3    See Boney v Attorney General of New South Wales [2018] FCA 1066. I also made orders for the filing of short written submissions on the issue of costs. These reasons should be read with the reasons I gave on 18 July 2018. I shall refer to the applicants as they now stand, the 14 persons who are applying for leave to contest the correctness of the interlocutory judgment of Rangiah J (Gomeroi People v Attorney General of New South Wales [2017] FCA 1464), as the applicant. I shall refer to the respondent to the application for leave to appeal, who brought the interlocutory application of 13 February 2018, as the Current Applicant.

The parties’ submissions

4    The Current Applicant filed written submissions on 1 August 2018. It submitted that although s 85A(1) of the Native Title Act 1993 (Cth) removed the expectation that costs will follow the event, the Court nevertheless retained its discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth). But the starting point was that each party will bear its own costs. Unreasonable conduct was not a jurisdictional fact to the exercise of the discretion under s 85A. For example, the Court could award costs under s 85A where there had been a wastage of time by a party’s conduct.

5    The Current Applicant submitted that where a party sought an indulgence, it was usual for the party to pay the costs of the application. That included costs thrown away by an amendment. The Court had jurisdiction to award costs against a successful party. That included where the successful party had committed disentitling conduct or where one party had sought the indulgence of the Court. The Court’s discretion was enlivened where a party had engaged in conduct that encouraged the other party to believe they had a valid claim to relief.

6    The Current Applicant submitted that it should be awarded costs for two reasons.

7    First, the Current Applicant’s interlocutory application was not unsuccessful; as a result of late amendments, the issues of authority and retainer which were correctly raised, fell away. The issue of futility would be determined by the Full Court, as would the issue of standing. As a result, the interlocutory application was not unsuccessful, and the issues raised either fell away or remained unresolved. In the circumstances, the Current Applicant should be awarded its costs of the interlocutory application.

8    Second, the applicant only sought to amend its leave application during the hearing of the interlocutory application on 13 June 2018, despite the Current Applicant, from 27 December 2017, putting the applicant on notice of deficiencies in its leave application, to which it never responded. The Current Applicant submitted that it had, since 27 December 2017, by correspondence sought information from the applicant’s lawyers as to which individuals they were representing, and had advised those legal advisers that they could not properly represent the “former applicant”. The applicant did not respond to that correspondence. In particular, on 27 December 2017, the solicitor for the Current Applicant emailed the solicitor for the applicant seeking information as to which members of the Former Applicant she had received instructions from. Further, on 29 January 2018, the Current Applicant filed an affidavit of Jason Wilson in which Mr Wilson confirmed he had not provided instructions to Mr Jarratt and did not support the appeal. Still further, on 31 January 2018, the solicitor for the Current Applicant emailed a letter to the solicitors for the applicant raising the issue of instructions and indicating that the Current Applicant would file an application to strike out the appeal if the appeal was not discontinued. Despite continuing correspondence, no substantive response was received and on 13 February 2018 the Current Applicant filed and served the interlocutory application and supporting affidavit.

9    The applicant submitted that the appropriate orders in relation to costs were:

(a)    Each party is to bear its own costs of the amendments.

(b)    Subject to the following order, each party is to bear their own costs of and incidental to [the Current Applicant’s] interlocutory application.

(c)    Reserve for consideration of the Full Court, in the course of the substantive appellate hearing, the costs of and incidental to [the Current Applicant’s] arguments as to: (i) the futility of the [applicant’s] application for leave to appeal and/or appeal itself; and (ii) the standing of the [applicant] to bring the application for leave to appeal.

10    The applicant submitted that the amendments were not an indulgence in the sense of the correction of some unilateral failure of a party. The amendments corrected a shared misapprehension, it was submitted. Further, the Current Applicant’s opposition to the amendments was unreasonable. Reading its submissions of 29 June 2018 fairly, the Current Applicant opposed the amendments in the hope of retaining a (perceived) winning advantage which rested upon preserving the shared misapprehension. Put another way, once the misapprehension was discovered, the amendments ought not to have been opposed (as distinct from the leave application, as amended). In all the circumstances, a misapprehension which was no-one’s fault or at least not the fault of the applicant, had been corrected over the opposition of the Current Applicant. Wielding a broad axe, and consistently with s 85A of the Native Title Act, each party should bear their own costs.

11    The applicant submitted that the interlocutory application was dismissed for two reasons. The first reason was that the amendments to the leave application rendered the challenge to the solicitor’s retainer and instructions otiose. The second reason was that the balance of the Current Applicant’s contentions (namely, the standing argument, and the futility argument) should be left for argument before the Full Court in the substantive appellant (sic) hearing.

12    As to the first reason, it was obvious that all active parties proceeded on the misapprehension that the persons comprising the Former Applicant retained their corporate or quasi-corporate status even once removed as an applicant by order under s 66B of the Native Title Act. Further, it may be noted that the Current Applicant did not place on the record in the proceedings before Rangiah J any concerns held about instructions or authority, notwithstanding at that time the Former Applicant was undoubtedly a group of persons who were, jointly, ‘the applicant’ (and two of whom had passed away). The Current Applicant seemed to imply that the quasi-corporate status issue should have been considered and corrected by the applicant at an early stage, and referred to 13 additional pages of correspondence. That implication should not be accepted, the applicant submitted, because all of the materials relied upon proceeded upon, and reinforced, the (then-shared) assumption that a former applicant retained a quasi-corporate status. That could be seen from the repeated references to the Former Applicant being unable to make decisions: (i) by majority; and (ii) in circumstances when members of an applicant had passed away.

13    That mutual mistake concerning quasi-corporate status was not surprising, given that, to the best of counsel’s knowledge and researches, there had never before been an appeal from a decision made pursuant to s 66B to replace an applicant. In a real sense this was a test case.

14    The Current Applicant emphasised that it was not unsuccessful. The applicant submitted that the dismissal of the interlocutory application could only mean that the Current Applicant was unsuccessful, and it was playing with semantics to try to carve out a middle ground between “successful” and “unsuccessful” where “the event” was the dismissal of the interlocutory application. The arguments which fell away did so because a shared misapprehension was corrected, and the arguments left unresolved were not so left because of the applicant; rather, the Current Applicant chose the wrong time or place to mount them. The applicant submitted that this was, in effect, a “nil-all draw”. Each party bearing its own costs would be consistent with: the approach of Rangiah J at first instance, s 85A of the Native Title Act, and the approach often taken by the Full Court in native title appeals.

15    The same conclusion could be reached another way, the applicant submitted. The applicant did not entice the Current Applicant into bringing the interlocutory application and that could be seen from the fact that the applicant’s solicitor was the unchallenged solicitor on the record for the Former Applicant when at least two of the members of the Former Applicant had passed away. As much as the applicant might mount an argument that the interlocutory application should never have been brought, so too could the Current Applicant argue that the applicant should have avoided it. A further matter was that the Current Applicant no longer sought indemnity costs. It appeared to accept that its application for such must fail. If the costs orders sought by the applicant were made, the Current Applicant would have again been unsuccessful. The applicant did not seek the costs of this costs application, preferring instead to contend that it was simply a further factor in favour of an “each bear own” outcome.

16    In relation to the second reason for dismissing the interlocutory application, the applicant submitted it was presently impossible to ascertain the correctness of either the standing argument or the futility argument, and it was therefore difficult to assess the reasonableness of advancing those arguments. One would assume that those arguments would be re-run before the Full Court, and so any preparatory costs (which might include much of the interlocutory application itself as a ‘dry run’) would not be wasted. For those reasons, the costs of those arguments should be reserved to the Full Court. Alternatively, it was unreasonable for the Current Applicant to advance the standing argument and the futility argument because they were beyond the scope of the interlocutory application; the Current Applicant never sought to amend the interlocutory application; and the arguments should always have been left of the hearing of the leave application because they were unrelated to the issue of the solicitor’s retainer and authority. Although the applicant did not take these points at the hearing, it was submitted their sensible and robust approach to meeting the Current Applicant’s arguments, as they shifted from the basis stated in the interlocutory application, should not be held against the applicant.

Consideration

17    Subject to the question of the costs of the amendments, in my opinion, in light of s 85A of the Native Title Act, the appropriate order is that each party should bear their own costs of the interlocutory application. I note as a factor that, in my view, the conduct of the applicant, or indeed the conduct of the Current Applicant, has not been unreasonable.

18    I take into account in particular the unanswered correspondence from the solicitors for the Current Applicant; the change of position by the applicant, although it was foreshadowed in the applicant’s written submissions dated 18 May 2018; the contentions on the part of the Current Applicant that I held were unnecessary for me to decide but appropriate for the Full Court to decide; and the Current Applicant’s unsuccessful opposition to the making of the amendments.

19    I do not accept the applicant’s submission that the appropriate course is to reserve part of the costs for the consideration of the Full Court. I have taken into account in deciding that each party should bear their own costs of the interlocutory application that those matters, the questions of futility and standing, were the subject of submissions on the present interlocutory application but more appropriate to be decided by the Full Court.

20    As to the costs of the amendments, in my opinion the appropriate order is that the applicant pay the costs, if any, thrown away by reason of the amendments. This was an indulgence sought by and granted to the applicant.

21    I make no separate order in respect of the costs of the submissions on costs: each party should bear their own.

Associate:

Dated:    17 August 2018

SCHEDULE OF PARTIES