Federal Court of Australia

Alvoen on behalf of the Wakaman People #5 v State Minister for the State of Queensland (No 5) [2023] FCA 1593

ORDERS

THE COURT ORDERS THAT:

1.    Uwoykand Corporation Pty Ltd ACN 629 167 737 pay the costs of the Wakaman Applicant and the State Minister for the State of Queensland of and incidental to the interlocutory application filed on 6 July 2023, on a party-party basis, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER ACJ:

1    The Wakaman Applicant and the State Minister for the State of Queensland sought costs against Uwoykand Corporation Pty Ltd (Uwoykand) in respect of the interlocutory application filed by the Wakaman Applicant on 6 July 2023. On 24 July 2023 I made an order in terms of paragraph 1 of the interlocutory application filed by the Wakaman Applicant (Alvoen on behalf of the Wakaman People #5 v State of Queensland (No 4) [2023] FCA 837 (Judgment)). Specifically in that interlocutory application the Wakaman Applicant sought the following orders:

1.     Uwoykand Corporation Pty Ltd (Uwoykand) cease to be a party pursuant to ss.84(8) & 84(9) of the Native Title Act 1993 (Cth);

2.     Uwoykand pay the costs of this application;

3.     Uwoykand pay the costs reserved pursuant to Order 2 of the Orders made by Justice Collier on 15 February 2022 when granting leave to Uwoykand to be joined as a respondent party;

4.     Such further or other orders as the Court deems necessary.

2    On 24 July 2023 I ordered that:

1.    Uwoykand Corporation Pty Ltd (Uwoykand) cease to be a party to the proceedings pursuant to s 84(8) of the Native Title Act 1993 (Cth).

3    At paras 78 to 79 of the Judgment I stated as follows:

78    I understand that the Wakaman Applicant no longer seeks costs reserved pursuant to Order 2 of the Orders of 15 February 2022 when leave was granted to Uwoykand to be joined as a respondent party.

79    However the Wakaman Applicant and the State have both sought costs of this interlocutory application. I will hear the parties in respect of the filing of written submissions concerning those costs.

Background

4    I adopt the background facts as set out at paras 4 to 20 of the Judgment.

5    Materially, Uwoykand – which had been joined as a respondent to the substantive Native Title application – refused to execute the s 87A Agreement that had been signed by all other parties during the weeks prior to the proposed consent determination date (18 August 2023). The dialogue between the parties during 2022 and the first half of 2023 was clearly directed to progressing the proceedings to a consent determination by execution of an agreement between the parties.

6    It is plain that prior to 23 June 2023, the legal representative for Uwoykand took no issue with the contents of the draft s 87A Agreement which had been circulated. Uwoykand’s interests were specifically protected under the Agreement.

7    As I explained in the Judgment, the conduct of Uwoykand was unjustifiably oppressive to the Wakaman Applicant and to the claim group, and constituted an abuse of process of the Court, warranting removal of Uwoykand as a party pursuant to s 84(8) of the Native Title Act 1996 (Cth) (Native Title Act) in the interests of justice.

8    Following delivery of Judgment on 24 July 2023 I made the following timetabling orders:

1.     The Wakaman Applicant file and serve any written submissions (limited to no more than 5 pages) in relation to costs of and incidental to the Interlocutory Application filed 6 July 2023, by 4:00 pm on 7 August 2023.

2.     The State of Queensland file and serve any written submissions (limited to no more than 5 pages) in relation to costs of and incidental to the Interlocutory Application filed 6 July 2023, by 4:00 pm on 10 August 2023.

3.     Uwoykand Corporation Pty Ltd file and serve any written submissions (limited to no more than 5 pages) in relation to costs of and incidental to the Interlocutory Application filed 6 July 2023, by 4:00 pm on 21 August 2023.

4.     The Wakaman Applicant and the State of Queensland each file and serve any written submissions in reply (limited to no more than 3 pages in length) by 4:00 pm on 28 August 2023.

5.     The issue of costs be determined on the papers without the need for a further oral hearing.

Summary of Submissions

9    All parties were legally represented. Written submissions of the parties can be summarised as follows.

Wakaman Applicant’s submissions

10    In summary the Wakaman Applicant submitted:

    Section 85A(2) of the Native Title Act was enlivened because Uwoykand engaged in an unreasonable act or omission that caused the Wakaman Applicant to incur costs in connection with the conduct of the proceedings.

    As Mortimer J (as her Honour then was) served in Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [239] it might be perceived as unjust, having found an abuse of process, for the Court not to order some compensation by way of legal costs.

    The conduct of Uwoykand was unjustifiably oppressive to the Wakaman Applicant and to the Wakaman Claim Group as a whole, and was an occasion where Uwoykand sought to use the “carrot of consent to the determination as leverage to secure agreement on other matters”.

    The Wakaman Applicant had put Uwoykand on notice that it would seek its costs associated with this interlocutory application.

    Uwoykand should have realised that its refusal to sign the s 87A Agreement was doomed, and that its behaviour would result in adverse consequences.

    Uwoykand has not explained why the Court ought not order costs against it in favour of the Wakaman Applicant and the State Minister for the State of Queensland.

    There is no barrier to the making of a costs order in favour of the Wakaman Applicant for the reasons outlined in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635.

State Minister for the State of Queensland Submissions

11    The State Minister for the State of Queensland submitted in summary:

    Sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) were relevant to the question of costs. Uwoykand’s characterisation of its conduct could not be sensibly reconciled with the requirements of ss 37M and 37N.

    This was an apt case for the Court to exercise the discretion to depart from the usual position that each party bears its own costs.

    As the evidence canvassed in the judgment made clear, the reasons for Uwoykand’s refusal to execute the s 87A Agreement have varied.

    That conduct continued through to the hearing of the interlocutory application, when Uwoykand abandoned matters that it sought to have included in the consent determination.

    The shifting bases upon which Uwoykand refused to execute the s 87A agreement, which refusal necessitated the interlocutory application, was at odds with its statutory duty to facilitate the just resolution of the native title proceedings according to law, and as quickly, inexpensively, and efficiently as possible.

    Uwoykand’s contentions as to timing ignored the consent determination timetable, which provided for Uwoykand to advise how it wanted its interests recorded in the consent determination, and further ignored the fact that on 18 April 2023 Uwoykand (by its lawyer) indicated ‘no comments or concerns’ with the s 87A agreement which position it maintained until a month before the consent determination.

    The inference could be drawn that Uwoykand’s conduct was motivated by its concern about connection issues (which had already been decided).

Uwoykand Submissions

12    In summary Uwoykand submitted:

    The more general and accepted proposition was that an order for costs was to compensate the successful party in litigation for those costs necessarily incurred in obtaining justice. It was not the function of a cost order (even an indemnity costs order) to punish an unsuccessful party.

    The Court retained a discretion to award costs under the Federal Court of Australia Act and s 85A(1) of the Native Title Act, which discretion was to be exercised judicially.

    The State Minister for the State of Queensland and the Wakaman Applicant have not shown that the Court should exercise its discretion to award costs against Uwoykand.

    In response to recent correspondence on behalf of Uwoykand requesting details of agreements concerning costs, the Wakaman Applicant indicated that it was likely that no cost agreement between the Wakaman Applicant and its representative in these proceedings exists.

    North Queensland Land Council (NQLC) representing the Wakaman Applicant appeared to have been provided with facilitation and assistance functions identified in in the Native Title Act. These provisions are ss 203B, 203BB and 203BC and funded under the Native Title Act, Part 2, Division 4.

    The Legal Profession Act 2007 (Qld) identifies constraints on entities lawfully capable of providing legal services. It is not apparent that NQLC or any associate of NQLC falls with any of the description under s 3, 22, 43, 44, 113, 117 and 145 of the Legal Profession Act.

    It was not apparent that NQLC or any associate of NQLC had made disclosure of costs payable by the Wakaman Applicant or secured an agreement in relation to such payment.

    The Court should not use its discretion because:

•    Matters raised were the product of legitimate and genuine concerns, were not overreaching nor unreasonable and were not indicative of an ulterior motive or intention to link unrelated aspirations to the finalisation of the proceedings;

•    The matters concerning the proposed agreement and Consent Determination which Uwoykand sought to influence (in an entirely proper way) were of a practical nature and, although matters upon which minds may differ, but for the late stage at which they were raised, the raising of them was not unreasonable;

•    Issues were not so momentous nor complicated as would have made the prospect of a mutually satisfactory outcome improbable; and

•    The conduct underlying the findings did not involve the flagrant re-agitation or attempted re-agitation of issues already disposed of that is characteristic of instances in which the Court might find s 85A(2) of the Native Title Act has application.

Consideration

13    Section 43 of the Federal Court Act confers jurisdiction on the Court to have jurisdiction to award costs, however in the Native Title context this jurisdiction is constrained by s 85A of the Native Title Act. Section 85A of the Native Title Act provides:

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.

14    In Cheedy on behalf of Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163, 199 FCR 23 at [9] the Full Court observed:

(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 at [54].

15    (see also State of Western Australia v Banjima People [2016] FCAFC 46)

16    As I noted earlier, Uwoykand was removed as a respondent to the proceedings in the interests of justice and also because its conduct was an abuse of process. In particular I note that:

    There had been discussions involving Uwoykand, including through its legal representative, in the first half of 2023;

    Uwoykand was aware of timetabling of the Wakaman native title application to consent determination;

    There was no indication that Uwoykand was not prepared to execute the s 87A Agreement until 23 June 2023, when consent determination was imminent; and

    Uwoykand sought to raise new matters for inclusion in the s 87A Agreement and consent determination at a late stage, in circumstances where neither the Wakaman Applicant nor the State Minister for the State of Queensland agreed, and Uwoykand was not entitled to insist on inclusion of those matters.

17    The conduct of Uwoykand was unjustifiably oppressive to the Wakaman Applicant and the Wakaman Claim Group, and constituted an abuse of process, and it was inconsistent with the obligations of Uwoykand under ss 37M and 37N of the Federal Court Act. In my view, Uwoykand by its unreasonable acts caused both the Wakaman Applicant and the State to incur costs within the meaning of s 85A(2) of the Native Title Act: Booth on behalf of the Kungardutyi Punthamara People v State of Queensland (No 2) [2017] FCA 844 at [7], Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 . Uwoykand should be required to pay relevant costs incurred by those parties.

18    To the extent that Uwoykand contends that any costs order adverse to it would be “punishment of an unsuccessful party” contrary to principles explained in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, such a submission is misconceived when viewed through the prism of s 85A of the Native Title Act. That section recognises that a party unreasonably causing another party to incur costs in the relevant matter may be ordered to pay some or all of those costs. The issue of “punishment” has no place in terms of that section, which is solely focussed on whether the conduct of the first-mentioned party constituted “any unreasonable act or omission”.

19    Finally, Uwoykand submits that there is a barrier to the making of an order for costs in favour of the Wakaman Applicant due to the absence of any demonstrated obligation on the part of the Wakaman Applicant in respect of costs. This is essentially because the Wakaman Applicant was represented by a representative body, North Queensland Land Council (NQLC) in accordance with NQLC’s facilitation and assistance functions identified in s 203B of the Native Title Act, and it appears that no costs agreement ever existed between the Wakaman Applicant and NQLC within the terms of the Legal Profession Act 2007 (Qld). No equivalent submission was put in respect of costs incurred by the State Minister for the State of Queensland.

20    An argument in similar terms was put to Mansfield J in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635, where his Honour noted at [14]:

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

21    His Honour noted at [15] that the Federal Court had awarded costs in favour of Native Title groups in such cases as Watson v State of Western Australia (No 3) [2014] FCA 127, A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 3) [2013] FCA 1134 and Tullock v State of Western Australia [2010] FCA 351, notwithstanding that the Native Title Applicant in each case was represented by Native Title Representative Bodies recognised under s 203AD of the Native Title Act. His Honour said:

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

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

...

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

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

22    His Honour later observed:

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

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

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

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

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

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

23    Uwoykand submitted that the Court in Far West Coast did not appear to have considered whether the indemnity principle in respect of costs had been displaced, or whether other conditions necessary for the Native Title Applicant to take the benefit of a costs order were met. I do not accept this submission – rather Mansfield J’s discussion of legal principles in Far West Coast plainly contemplated the relevant distinctions between private legal practice and provision of legal services by publicly funded legal representatives, and the recovery of costs referable to legal services provided by those representatives. I respectfully adopt Mansfield J’s articulation of relevant principles.

24    In any event, I also note that the general prohibition in s 24(1) of the Legal Profession Act on a person other than a Australian legal practitioner engaging in legal practice in Queensland does not apply to a person engaging in a legal practice “prescribed under regulation” (s 24(2)(e)), and in turn reg 7 of the Legal Profession Regulation 2017 (Qld) prescribes legal practices prescribed for the purposes of s 24(2)(e) of the Legal Profession Act as including:

(b)    the provision of legal services to Aboriginal or Torres Strait Islander people by a publicly funded, non-profit corporation whose primary purpose is to provide legal services to Aboriginal or Torres Strait Islander people.

25    To that extent any question of the status of NQLC in providing legal services to the Wakaman Applicant has no merit.

Conclusion

26    I am satisfied that, by its unreasonable acts or omissions as discussed in detail in the Judgment, Uwoykand caused the Wakaman Applicant and the State Minister for the State of Queensland to incur costs in connection with the conduct of the proceeding, specifically of and in relation to the interlocutory application filed by the Wakaman Applicant on 6 July 2023.

27    I reject the submission of Uwoykand that the Wakaman Applicant is unable to recover costs referable to its representation by NQLC.

28    I will order Uwoykand to pay the Wakaman Applicant and the State Minister for the State of Queensland costs of and in connection with the interlocutory application filed by the Wakaman Applicant on 6 July 2023.

Associate:

Dated:    15 December 2023

SCHEDULE OF PARTIES