FEDERAL COURT OF AUSTRALIA

Attwood v Gordon (on behalf of the Kariyarra Native Title Group) [2018] FCA 1578

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to R 35.31(4) and R 40.02(b) of the Federal Court Rules 2011 (Cth), within 60 days of the date of this order or such a period as those parties may agree between them, the applicant pay the costs of the first respondent fixed at $16,500.00.

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

REASONS FOR JUDGMENT

BARKER J:

1    In Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430, North J made the following orders:

1.    To the question ‘Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area?’, being the area of applications WAD6169/1998, WAD232/2009 and WAD47/2014, the Court provides the following answer:

(1)     The persons holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area are the persons who comprise the Kariyarra community, being those Aboriginal persons who:

(a)     are a descendant, by cognatic descent, from one or more of the following apical ancestors:

(i)     Jinapi

(ii)     Wirtinpangu (Jimmy)

(iii)     Dougal Robinson

(iv)     Puyubungu

(v)    Yanki Williams

(vi)     Topsy McKenna

(vii)     Fanny

(viii)     Nyitji

(ix)     Maggie

(x)     Tommy Anderson

(xi)     Fauntleroy (Pontroy)

and

(b)     recognise themselves as having rights and interests in the Kariyarra Claim Area under Kariyarra traditional law and custom, and

(c)    are recognised by other members of the Kariyarra community as having rights and interests in the Kariyarra claim area under Kariyarra traditional law and custom.

2.    Liberty to the applicants and the first respondent to apply by 10 April 2018 to remove the words ‘by cognatic descent’ in paragraph 1(a) of the above answer.

3.    Subject to any order made under paragraph 5 of these orders, Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith are removed as respondents to the Kariyarra – Pipingarra application WAD 232 of 2009.

4.    Within a time to be fixed the applicants and the first respondent file in Court a proposed determination of native title.

5.    Costs reserved.

2    The result was that the applicants, and the party referred to in the judgment as the Indigenous respondents, were found to hold the communal rights comprising native title together; and the contention of the applicant in that proceeding, referred to in these reasons as the Kariyarra respondent, to the effect that the Indigenous respondents were not part of the native title holding group, was rejected; as was the contention of the Indigenous respondents that they, and they alone, held the native title.

3    The Indigenous respondents then sought an extension of time and leave to appeal from that order (which I will call the leave application), it being interlocutory in nature. The leave application was listed for hearing, together with the appeal if leave was granted, before a Full Court of this Court on 24 August 2018. The Kariyarra respondent opposed the leave application.

4    On 21 August 2018, three days before the hearing of the matter, the Indigenous respondents, as applicants on the leave application, withdrew the leave application.

5    The Kariyarra respondent now seeks its costs of the leave application as follows:

1.     Pursuant to Federal Court Rules 2011 rr 35.31(4) and 40.02(b), within 28 days of the date of this order, the Applicant pay the costs of the First Respondent fixed at $16,500.00.

2.     Such other order as the Court thinks fit.

6    I hear and determine this costs application as the presiding judge of the Full Court that was scheduled to hear the leave application, pursuant to s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth).

7    Rule 35.31 of the Federal Court Rules 2011 (Cth) makes it plain that a party who has filed an extension of time and leave to appeal application (being an application under R 35.14) may withdraw the application in accordance with Form 120 (as has happened here upon the withdrawal of the leave application by the Indigenous respondents). Such a notice has the effect of an order of the Court dismissing the application. Subrule (4) expressly provides that:

A party who has filed a notice under subrule (1) must pay the costs of each other party to the application.

8    If there were no other relevant rule or provision of the Native Title Act 1993 (Cth) (NTA) (under which the proceeding before North J proceeded) which governed the present costs application of the Kariyarra respondent, there would be no doubt that the Indigenous respondents would have an obligation to pay the costs of the Kariyarra respondent on their withdrawal of the leave application.

9    However, s 85A of the NTA expressly provides that:

(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.

10    In Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) (2011) 199 FCR 23; [2011] FCAFC 163 at [11], the Full Court (North, Mansfield and Gilmour JJ) held that s 85A applies equally, and directly, to appeals, applications for leave to appeal and to decisions of first instance. I am bound by that holding.

11    The result is that the dicta of the Full Court as to the application of s 85A on an appeal, or an application for leave to appeal, is relevant to the application for costs before me.

12    In Cheedy, at [9], the Full Court held:

9    It is now well established that in proceedings to which s 85A applies:

(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 pre-conditions 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 South Australia at [53], [54].

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

13    It follows that the starting point concerning the leave application, and its withdrawal, is that each party will bear its own costs. But the power to award costs remains, although it should not be used to “punish” the party withdrawing the application and must be exercised judicially.

14    A question arises whether the conduct of the Indigenous respondents, in withdrawing the leave application three days before the hearing of the application before the Full Court, constitutes “unreasonable conduct” under s 85A that should lead to a costs order being made against them.

15    On this question, the Indigenous respondents submit in their written submissions, as follows:

5.    The conduct of the Applicants in the application for leave to appeal, cannot be characterised as unreasonable, they sought the services of Senior Counsel for the application, initially Bret Walker SC, as stated in the submissions filed 17 May 2018. When Mr Walker was unable to appear at the hearing due to commitments as Commissioner for the Murray Darling Basin Royal Commission, Mark Robinson SC was briefed and settled the Applicants’ Submissions, but was not able to appear at the hearing due to the funeral of his brother being fixed on the day the appeal was listed for hearing. Mr Robinson’s brother passed away on 14 August 2018, 6 days after their father passed away.

6.     When the request to adjourn the hearing was unsuccessful, the Applicants gave notice they would not proceed with the application and filed the formal notice of withdrawal.

7.     The submissions settled by Mr Robinson SC confirm that the Applicants had legitimate points to raise, which they should not be punished for, or deterred from, by way of a costs order; Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163 ; 199 FCR 23 at [9].

8.     The Applicants submit the appropriate order is that reflected in s85A, also reflected in order 3 of the Applicants’ draft notice of appeal dated 19 April 2018; Tab 26 Part A Appeal Book. It follows that the First Respondent’s application for costs orders should be refused.

9.     The application for costs is also to be considered in light of the status of the First Respondent’s costs are met by the publicly funded representative body (YMAC), who have statutory functions of facilitation and assistance.

10.     Although at December 2010, YMAC’s instructions were that the Todd/Dann and Lockyer families did not qualify as members of the Kariyarra people; Roberts v State of Western Australia [2010] FCA 1483, at [1]; the effect of the claim group amendments was to include the family in the claim group TR (Deceased) v State of Western Australia [2014] FCA 734, at [56]. This meant the facilitation and assistance functions of YMAC ought properly have extended to include the Applicants, notwithstanding the application raised in the First Respondents’ final submissions at trial to find the Applicants were not to be part of the Kariyarra People; Gordon v State of Western Australia [2018] FCA 430, at [350; even where no evidence was led on the issue, at [352].

11.     The Applicants have been put to the very significant expense of acting in proceedings to establish the position that their family did not qualify as members of the Kariyarra people, was incorrect. Also in circumstances where although the effect of the amendments to the claim group was to include their family in the claim groups, they were required to resist an application to find they were not part of the Kariyarra People. This all occurred in circumstances where the costs of their opposition were met by the publicly funded representative body, which was in fact required to facilitate and assist the Applicants.

12.     The Applicants submit that seeking a costs order against the Applicants in all of the circumstances, including the acceptance in the preamble to the Native Title Act 1993, that they are part of the most disadvantaged group in Australian society, is ‘a bridge to far’ to use the language of French CJ in Weinstock v Back [2013] HCA 14; 87 ALJR 554, at [44].

16    In rejecting the submissions of the Indigenous respondents, the Kariyarra respondent says that before the Indigenous respondents filed their withdrawal notice under R 35.31(1), the Kariyarra respondent told them that it would be seeking costs and the approximate amount of the costs. It submits that if the Indigenous respondents did not want to be subject to R 35.31(4), then the appropriate action was for them to ask for a hearing and seek an order that costs not apply, but they did not do so.

17    The Kariyarra respondent submits that, in any event, the Indigenous respondents’ conduct has been sufficiently unreasonable that, under s 85A of the NTA, it would be appropriate for the Indigenous respondents to pay the Kariyarra respondent’s costs of the application.

18    By reference to Oil Basins Limited v Watson [2014] FCAFC 154, where the Full Court (Siopis, McKerracher and Barker JJ) considered s 85A and upheld a costs order against a respondent party made by the primary judge upon the withdrawal of its opposition to a consent determination, not because it was motivated to contest native title, but because it did not have reasonable grounds for doing so, the Kariyarra respondent submits costs for unreasonable conduct should be ordered here.

19    The Kariyarra respondent submits that the fact that the Kariyarra respondent was represented by a representative Aboriginal/Torres Strait Islander body does not preclude an award of costs, as the decisions of the Court in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 and in Oil Basins Ltd v Watson and Others (2017) 252 FCR 420; [2017] FCAFC 103 establish.

20    In summary, the Kariyarra respondent submits that the Indigenous respondents acted unreasonably, in this proceeding, in:

    bringing an appeal out of time;

    pushing for a single hearing on the leave to appeal and appeal, which caused increased expense to the Kariyarra respondent;

    withdrawing their appeal just three days before the hearing when the Kariyarra respondent had done most of its preparation; and

    failing to attend the Court conference to settle the appeal book on 15 June 2018 and repeatedly missing dates for the service of documents, including after consent orders were made to give them additional time to complete documents.

21    They also contend that:

    while it is not known what the Full Court would have decided if the withdrawal of the application for leave had not occurred, the appeal was essentially limited to factual findings and it is usually difficult for a Full Court to overturn factual findings, particularly in native title cases; and

    the Indigenous respondents first became respondents to one of the Kariyarra claims in 2010 with the purpose of having their membership of Kariyarra recognised. In 2013, the Kariyarra claim groups authorised and filed an amendment to the Form 1 to the Kariyarra native title claims, which had the effect of including the Indigenous respondents’ apical ancestor in the claim group description. The Indigenous respondents challenged the amendment to the Form 1, which was ultimately amended in 2014 in accordance with the changes sought by the Kariyarra respondent. The Indigenous respondents went on to challenge the membership of almost every other Kariyarra person. When pressed, one of the Indigenous respondents, Mary Attwood said in Gordon, at [287], that they brought the case purely because they had been previously excluded. It is apparent that the Indigenous respondents sought leave to appeal not to protect their own interests (they were and remain members of the Kariyarra claims) but to exclude other Kariyarra people from the claims. The ongoing litigation pursued by the Indigenous respondents has delayed the Kariyarra consent determination by at least four years. This history is detailed in paras [8]-[13] of the affidavit of Kylie Margaret Chalmers.

22    In my view, the fact that the Indigenous respondents sought to bring an appeal out of time which necessitated an application for leave to extend the time, is neither here nor there. As counsel for the Indigenous respondents points out, because the primary judgment of North J was, strictly speaking, an interlocutory judgment, there was no right to appeal; leave to appeal was required and the time for lodging the appeal needed to be extended in the result. This factor does not, of itself, bear on the question of unreasonable conduct in this case.

23    Nor do I consider that pushing for a single hearing on the leave to appeal and the appeal, which caused the Kariyarra respondent to have to prepare for the appeal, is a significant factor. As the judge who case managed the leave application proceeding, I considered it appropriate that the parties should prepare for a hearing that dealt with, not only the question of extension of time and leave to appeal, but the appeal itself if leave were granted at the hearing. That is a convenient process which often serves the principles of efficiency and cost reduction in the conduct of appeal proceedings. I would therefore not consider this factor, of itself, to be of any significance so far as the question of unreasonable conduct is concerned.

24    The withdrawing of the “appeal” three days before the hearing is, however, a matter of considerable relevance. It is not to be doubted that the Kariyarra respondent was required to be fully prepared for the hearing on all substantive appeal issues at the time the withdrawal occurred. One would expect no less of any native title party to a leave application such as this.

25    The apparent explanation of the Indigenous respondents for their late withdrawal of the leave application is that they had initially sought to take advice from one senior counsel and were then obliged to brief another senior counsel when the first was unavailable to appear at the hearing. The second senior counsel’s circumstances then became complicated following deaths in his family. Notwithstanding such unfortunate events personal to counsel, the Full Court declined to adjourn the hearing of the leave application. As I pointed out to counsel for the Indigenous respondents on the hearing of this costs application, the Court assumes, in such circumstances, that either another counsel briefed in the matter, or junior counsel already familiar with the proceeding, would appear at the hearing. Counsel did not dispute this expectation.

26    Instead, the Indigenous respondents simply chose to withdraw the leave application. Their counsel appearing at the costs application seemed to suggest that they did so on the basis that the second senior counsel, following his inability to appear, advised them to adopt that course.

27    Be that as it may – and it is a surprising option for a party to elect to adopt where they have commenced an appeal proceeding apparently of substance and have junior counsel familiar with the matter, both from the trial and the leave application preparation, available to appear for them – the fact is that the Indigenous respondents abandoned the leave application fully understanding that in all likelihood a costs order would be sought against them upon withdrawal. That is apparent from the fact that the Kariyarra respondent put them on notice that it would seek costs should the proceeding be withdrawn.

28    In any proceeding like this where a leave application is unilaterally withdrawn shortly before the hearing, a respondent will feel aggrieved and entitled to its costs of having prepared for the appeal. That expectation is reflected in R 35.31(4). Indeed, the Rule is, as noted earlier, that upon withdrawal of the application the applicant “must” pay the costs of the affected respondents. Subject to the discretion of the Court not to apply the Rule, in ordinary circumstances that is the expectation.

29    In my view, while the bringing of the leave application was unexceptional, for costs purposes, the withdrawal of the leave application just three days before its hearing is not. The withdrawal of the leave application in such circumstances was unreasonable. It is not good enough for the Indigenous respondents simply to advert to the fact that senior counsel then briefed was unable to appear and to say that they were advised to withdraw the leave application. As I have intimated, that is a somewhat remarkable course of events for a party who has commenced such an application, apparently on the basis of serious concerns to them, to take.

30    In my view, the withdrawal of the leave application by the Indigenous respondents, effectively at the last minute before the hearing, was, in all the circumstances, unreasonable conduct within the meaning of s 85A of the NTA.

31    As a result, I would order that the Indigenous respondents pay the costs of the proceeding of the Kariyarra respondent.

32    The next question is whether the Court should, as the Kariyarra respondent submits, order lump sum costs be paid without the need for a formal assessment or taxation of costs to be carried out.

33    The lump sum costs order application is supported by the affidavit of Cheryl Ann Collins dated 3 September 2018, specifying the costs. They are largely the costs of senior counsel briefed on the hearing. I consider them reasonable. The principles governing the making of a lump sum costs order have recently been discussed by McKerracher J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 7) [2018] FCA 1217. It is reasonable, in my view, to avoid further delay and expense in the proceeding for the Court now to make a costs order substantively in the terms sought by the Kariyarra respondent.

Order

34    The Court orders that:

(1)    Pursuant to R 35.31(4) and R 40.02(b) of the Federal Court Rules 2011 (Cth), within 60 days of the date of this order or such a period as those parties may agree between them, the applicant pay the costs of the first respondent fixed at $16,500.00.

Associate:

Dated:    19 October 2018