FEDERAL COURT OF AUSTRALIA

Gebadi v Woosup (No 3) [2020] FCA 403

ORDERS

THE COURT DECLARES THAT:

1.    The cost payable by the respondents pursuant to Order 7 made on 7 December 2017 be fixed at $197,897.49.

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

EX TEMPORE REASONS FOR JUDGMENT

GREENWOOD J:

1    This proceeding is concerned with an interlocutory application by the applicants in the principal proceeding for an order that the costs payable by the respondents pursuant to Order 7 of orders made by the Court on 7 December 2017 be fixed in an amount of $197,897.49. The respondents to the proceeding are Mr Larry Woosup who appears this morning by telephone and Ms Beverley Tamwoy who has not appeared. The application has been served upon both respondents. Ms Tamwoy has been called this morning, but she has not responded to the call.

2    The observations that I now make in relation to the application should be read in conjunction with the reasons for decision in the principal proceeding published on 7 December 2017 and the orders made on 7 December 2017 in that proceeding: Gebadi v Woosup [2017] FCA 1467; (2017) 253 FCR 310. In the principal proceeding, orders were made and, in particular, declarations were made that Mr Woosup and Ms Tamwoy had breached the duties they owed to the native title claim group for the Angkamuthi native title determination application. The declarations note the financial benefits received by Mr Woosup and orders were made for Mr Woosup to account to the applicant for the relevant monies the subject of the declaration. It is not necessary to expand upon those matters in this application.

3    By Order 7 of the orders made on 7 December 2017, Mr Woosup and Ms Tamwoy were ordered to pay the costs of the applicants of and incidental to the proceedings including reserved costs. The application today is concerned with fixing the amount of those costs at $197,897.49. The application is supported by an affidavit from Mr Nigel Hales, sworn 7 February 2020. Mr Hales is the solicitor for the applicants in the proceeding. The application is supported by an assessment of the costs conducted by graham + bull, and I have before me the assessment dated 22 June 2018. Mr Hales deposes that the applicants are not claiming more than they are liable to pay for costs and disbursements. He says that the calculations are correct and that the matters noted in the summary are an accurate summary of the costs and disbursements that the applicants are entitled to claim.

4    The costs summary has been prepared in accordance with the Federal Court scale of fees and charges and, in the affidavit, Mr Hales identifies the individuals who have provided professional services in the conduct of the matter, and those services are noted in the costs assessment. The costs assessment also contains a summary of disbursements fairly and reasonably incurred. Mr Hales deposes that an estimate of the proportion of the total sum claimed which is attributable to counsel’s fees is 43%, and he deposes that the amount claimed for skill, care and responsibility is $19,005.10. He deposes that this amount reflects 25% of the scale charges otherwise claimable and was assessed by Mr Michael Graham of graham + bull costs assessors as the appropriate amount having regard to the complexity, novelty and importance of the matter including the amount involved, the number and complexity of the documents prepared and pursued, the degree of research and consideration of questions engaged by the matter, and the degree of specialist knowledge and skill which was called upon in conducting the matter.

5    It is perfectly true to say that the matter was novel in that it was a proceeding in which the applicant had to establish that the respondents owed fiduciary obligations to the claim group people, for the purposes of the Angkamuthi determination application. The applicants were vindicated in their contentions. They demonstrated that duties were owed, that the duties were breached, and they succeeded in obtaining an order that Mr Woosup account for the monies the subject of the declarations. The proceeding also involved contentions against Ms Tamwoy and, in the balance of the considerations in the matter generally, the orders of 7 December 2017 provided for an order that both respondents pay the costs of and incidental to the proceedings. Those costs have now been calculated in accordance with the estimate as I have already mentioned.

6    It is important to understand that public monies were engaged in pursuing this proceeding to vindicate the claims of the applicants. It is important to note that they were vindicated in all of their contentions. The applicants quite properly brought the proceedings and quite properly maintained the proceedings to the point of trial and judgment. Mr Woosup is appearing this morning and says that there are some fundamental difficulties for him because he is an Aboriginal person in circumstances where he simply cannot pay the funds that would be the subject of an order, and he asked the question “Where can we get those sorts of funds?” He says that he is suffering ill health and that he is a pensioner, and that he has suffered mental stress in the matter generally over the last few years.

7    I accept that those things are so, but ultimately they really are not relevant to the question to be decided. The fundamental matter is that the applicants were put to the difficulty of preparing and prosecuting to judgment a proceeding in which they sought to vindicate the rights that were ultimately shown to be well-held and well-asserted. At any moment in time, Mr Woosup and Ms Tamwoy could have accepted the propositions put to them and could have accepted orders that they account for the monies which had been received as described in the course of the reasons for judgment, however, they chose not to do so. They chose to have their day in court, and they chose to put the applicants to the cost and expense of vindicating their position.

8    In the present application, the applicants seek an assessment of costs on a party and party basis, not on an indemnity basis, and having examined the assessment carefully, I am satisfied that it is perfectly proper to order that the respondents pay costs in the quantum as assessed. Moreover, I do not see any basis upon which these applicants should be put to even one dollar more of expenditure in pursuing these questions. Doing so very much is a waste of money. In saying that, I am not critical of the applicants at all. I simply recognise that in order to bring the costs question to a head and to an end, I do not wish to see the applicants expend any further costs than they absolutely have to incur.

9    Having regard to all of these observations, I am satisfied that it is perfectly proper to exercise the discretion to make an order that the costs payable by the respondents, pursuant to Order 7 made on 7 December 2017, be fixed in an amount of $197,897.49 and the Court so orders.

Associate:

Dated:    20 March 2020

SCHEDULE OF PARTIES