Federal Court of Australia

Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria (No 2) [2026] FCA 11

ORDERS

THE COURT ORDERS THAT:

1.    There be no order as to the costs of and incidental to the separate question ordered 22 April 2025.

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

introduction

1    On 21 July 2025, I made the following order in respect of a separate question arising out of a dispute between the Applicant and the sixty-fifth and sixty-sixth respondents (Mr Clarke and Dr Couzens) as to whether their ancestors (Nicholas Couzens and John Couzens) are the biological descendants of the ancestor named in the Wadawurrung peoples’ native title claim (John Robinson):

Was each of the following persons biologically descended from John Robinson:

(i) Nicholas Couzens;

Answer: Yes

(ii) John Couzens;

Answer: Yes

2    On 26 August 2025, I delivered reasons for judgment: Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria [2025] FCA 1011. These reasons assume familiarity with that decision.

3    Mr Clarke and Dr Couzens seek an order that the Applicant pay their costs of and incidental to the separate question. They seek those costs on an indemnity basis after 28 April 2025 or, alternatively, 10 July 2025, being the dates on which two “Calderbank” offers were made. Mr Clarke and Dr Couzens otherwise seek an order that the Applicant pay their costs on a party and party basis.

basis upon which costs are sought

4    The primary argument made by Mr Clarke and Dr Couzens is that, “properly advised”, the Applicant should have known that they had no chance of success on the separate question. They contend that the Applicant’s conduct in “persisting” with the hearing cannot “sensibly be reconciled” with the requirements of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) and this justifies the exercise of the discretion to make an order that the Applicant pay their costs.

5    Mr Clarke and Dr Couzens also place reliance on the offers which identified various “deficiencies” in the Applicant’s case. In each case, the offer sought to resolve the separate question on the basis that the separate question be answered “yes” and other unresolved issues as to membership of the Wadawurrung native title claim group be referred to mediation. Both offers lapsed. Given the offers, Mr Clarke and Dr Couzens submit that it was unreasonable for the Applicant not to agree to a compromise position “from at least 28 April 2025, and more overwhelmingly so, from 10 July 2025”. It is on that basis that Mr Clarke and Dr Couzens seek an order for indemnity costs.

6    The Applicant rejects the above characterisation of their conduct and the merits of their case. However, the Applicant also relies upon an affidavit from their solicitor, Matthew Hansen of Extent Legal, filed 23 September 2025. Mr Hansen deposes that in August 2025, the Applicant entered into a third-party payer agreement with First Nations Legal & Research Services (FNLRS) (a native title representative body under the Native Title Act 1993 (Cth)) under which FNLRS agreed to fund their legal services. Mr Hansen also gives evidence that he was informed by the Chief Executive Officer of FNLRS that it also funds Mr Clarke and Dr Couzens in relation to their legal services (which are similarly provided by an independent lawyer).

7    The Applicant submits that the parties’ common funding by FNLRS is material to the exercise of the discretion whether to award costs under s 85A of the Act. That is because both parties’ costs will likely ultimately be paid by FNLRS and the purpose of an award of costs is to compensate the successful party, not to punish the unsuccessful party: cf, Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No. 5) [2021] FCA 246; (2021) 151 ACSR 26 at [9] (Wigney J), citing R v Yurisich (No 2) [2007] FCAFC 51 at [19] (Sundberg, Weinberg and Rares JJ); Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 (Mason CJ); and Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 at [1099] (Dowsett and Lander JJ).

8    Mr Clarke and Dr Couzens concede that both parties “are not personally liable for costs”. Notwithstanding, they contend that they and the Applicant “must seek funding approval” and submit that:

An order that the Applicant pay [Mr Clarke and Dr Couzens’] costs would record that the Applicant is responsible for the allocation of public funds to the separate question proceeding, and the Applicant should justify those costs to the Representative Body.

The Court may also make costs orders to mark its disapproval of the Applicant’s failure to make appropriate concessions and not advance untenable arguments. This is again relevant to the approval and allocation of public funding. Such a purpose is not punitive, and there can be no punitive effect where the Applicant is not personally liable.

(Footnotes omitted)

9    The latter submission is founded on cases in which the unreasonable conduct of a party (or the parties) has informed the exercise of the discretion by the Court to award indemnity costs (Oxman v Raphael Road Pty Ltd [2025] WASCA 144 at [46] to [47] (Thomson P, Hall and Archer JJA) and Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 at [10] (Kenneth Martin J)) or to order that each party bear their own costs (Food Channel Network Pty Ltd v Television Food Network GP (No. 3) [2010] FCAFC 158 at [5] (Keane CJ, Stone and Jagot JJ)).

costs in native title proceedings

10    An award of costs is in the discretion of the Court: Federal Court Act, s 43. That discretion is “very wide” but must be exercised judicially: Principal Strategic Options Pty Ltd; Re Coshott v Coshott [2001] FCA 664 at [17] to [18] (Branson J). It extends to the discretion to make an order for indemnity costs: Federal Court Act, s 43(3)(g).

11    As the Applicant highlights, the purpose of an award of costs is to indemnify the successful party, not to punish the unsuccessful party: Colgate-Palmolive at [9]. This is reflected in the Federal Court Rules 2011 (Cth) which defines both “costs as between party and party” and “costs on an indemnity basis” by reference to the costs that have been incurred by the party: Rules, Sch 1.

12    The general rule is that costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [35] (Gaudron and Gummow JJ), [66] to [67] (McHugh J) and [134] (Kirby J). But where, as here, the proceeding relates to a native title determination application, s 85A of Act alters the position: Act, s 80; see also, Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1560 at [145] (Mortimer J, as her Honour then was).

13    Section 85A of the Act provides:

(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    The principles relevant to the operation of s 85A were summarised by the Full Court (North, Mansfield and Gilbour JJ) in Cheedy v Western Australia (No. 2) [2011] FCAFC 163; (2011) 199 FCR 23 as follows (at [9]):

(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 [Federal Court of Australia Act 1976 (Cth)];

(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; 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 State of South Australia [2007] FCA 1479] at [54].

(Emphasis added)

15    Whether conduct can be said to be “unreasonable” depends upon the circumstances of each case: Akiba at [149]. Conduct has been held to be unreasonable within the meaning of s 85A of the Act, where: the party “could not have considered it had reasonable grounds for believing it could successfully resist” a claim (Oil Basins Limited v Watson [2014] FCAFC 154 at [155] and [160] to [163] (Siopsis, McKerracher and Barker JJ)); it was “objectively unreasonable” to bring and maintain the application (Malone on behalf of the Western Kangolou People v State of Queensland (No. 5) [2025] FCA 353 at [21] (O’Bryan J); and where the conduct of an unsuccessful party in a proceeding constitutes an abuse of process (Mann on behalf of the Bigambul People #2 v State of Queensland (No. 2) [2023] FCA 1598 at [22] (Collier ACJ)).

Indemnity costs

16    An award of indemnity costs is to “serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Colgate-Palmolive at [9], citing Hamod v New South Wales [2002] FCAFC 92; (2002) 188 ALR 659 at [20] (Gray J, with whom Carr and Goldberg JJ agreed).

17    The circumstances in which it may be found to be unreasonable for the successful party to be subjected to the expenditure of any costs are not fixed or closed: Colgate-Palmolive at [10]. But they have been found to include conduct that relevantly mirrors an award of costs pursuant to s 85A of the Act, such as where the “moving party persists in what should on proper consideration be seen as a hopeless case”: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No. 2) [1993] FCA 70; (1993) 46 IR 301 at 303 French J.

Costs orders where the party is funded by a native title representative body

18    While framed in terms of the exercise of the discretion, the Applicant’s submission (as outlined at [7] above) raises a question as to the power of the Court to make an order for costs in accordance with s 85A of the Act, where the party seeking such an order is not liable for their costs.

19    Mr Clarke and Dr Couzens principally rely, in support of the contention that the Court may make orders under s 85A notwithstanding that they are funded by a representative body on Far West Coast Native Title Claim v State of South Australia (No. 8) [2014] FCA 635. In that case, Mansfield J held that s 85A contemplates that both an independent lawyer funded by a representative body and a representative body should be able to seek their costs from another party in appropriate circumstances: at [24]. That conclusion was expressed in the context of there being an “understanding” that the party may be liable to pay for legal costs incurred on their behalf by the representative body, even though the party “may not expect to be liable to pay” for those legal costs: at [22].

20    In Oil Basins Limited v Watson [2017] FCAFC 103, the Full Court (North ACJ, Dowsett and Rares JJ) considered the application of Far West Coast against the background of an appeal from a decision dismissing an application for review of the taxation of a bill of costs under r 40.34(2) of the Rules. The issue at first instance, and on appeal, was whether items in the bill of costs ought to have been disallowed because the party (the applicant in a native title determination application) had no liability to pay their lawyer (a solicitor employed by a native title representative body) for costs incurred in the conduct of the proceeding: at [5]; see also at [10] and [22]. The primary judge applied Far West Coast in dismissing the review application: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No. 7) [2015] FCA 1404 at [35] and [55] to [57] (Barker J); see also, Oil Basins at [14] (North ACJ and Rares J).

21    Justice Dowsett (in dissent) expressed concerns about the finding made by Mansfield J at [24] of Far West Coast, as outlined above: at [110]. Those concerns were informed, amongst other matters, by the view that “in the context of legal proceedings, the word ‘costs’ inevitably carries with it, the notion of indemnity”: at [110]. Given that, Dowsett J concluded that it “cannot seriously be argued that Parliament intended, in enacting s 85A, to empower this Court to make costs orders which go beyond the indemnification of the relevant party against his or her liability to pay such costs”: at [110].

22    His Honour went on to consider the view expressed by Mansfield J that if a representative body retains independent lawyers, “i[t] would be difficult to suggest that the independent lawyer … should not be able to seek costs from another party in appropriate circumstances”: Oil Basins at [111] regarding [24] of Far West Coast.

23    Justice Dowsett stated (at [111]):

… There is, with all respect, a certain awkwardness of language in that assertion. A lawyer cannot generally seek an order for costs against a party. Any order will be in favour of the lawyer’s client. The client’s capacity to recover under such an order depends upon his or her having incurred liability to pay. If the client is liable to pay the lawyer, the former, not the latter, will recover the amount from the other side. The question is whether there is any such liability.

(Emphasis added)

24    Acting Chief Justice North and Justice Rares did not question the correctness of Far West Coast. Importantly, however, their Honours dismissed the appeal on the basis that the appellant had not discharged its onus of establishing that the respondent (the applicant in a native title determination application) had made a concession that they would not be liable to pay legal costs incurred by the representative body in representing them or that the primary judge had made a finding to that effect: at [43]; see also at [22]. Their Honours observed, in this respect, that (at [23]):

… it was implicit in the course taken by the primary judge that he accepted the respondents’ contention that no such concession had been made. If the primary judge had accepted the position advocated by [the appellant] that the respondents had made the concession, there would have been no occasion to apply Far West.

(Emphasis added)

25    That line of authority is material given Mr Clarke and Dr Couzens’ concession, in written submissions in reply, that they “are not personally liable for costs”. In light of that concession, and consistent with the view expressed by the majority in Oil Basins, there is no occasion here to apply Far West Coast. The finding that s 85A of the Act contemplates that a lawyer funded by a representative body may seek its costs was premised on the existence of a liability (if not an expectation) on the part of the party they represent to pay for the legal costs incurred on their behalf: Far West Coast at [22] and [24]. Without such a liability to FNLRS, Far West Coast does not provide a basis for Mr Clarke and Dr Couzens to seek their costs in accordance with s 85A of the Act.

26    Mr Clarke and Dr Couzens also rely upon the decisions of McKerracher J in Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia (No. 2) [2017] FCA 1468 and that of Collier ACJ in Mann. Neither provide assistance because the view expressed in each – that the fact that the party was represented by a representative body does not preclude an award of costs in accordance with s 85A of the Act – relied upon Far West Coast: Peterson at [9]; Mann at [16] to [18]. The reasons for those decisions do not otherwise disclose whether the party was liable to the representative body for the costs in respect of which an award was sought: cf, Peterson at [11] and Mann at [16].

It is not appropriate to exercise the discretion to award costs in any event

27    If I am wrong, and a party not liable to a representative body for the costs of legal services provided to them is able to seek costs in accordance with s 85A of the Act, then I am not satisfied that it is appropriate in the circumstances of this case to make such an award.

28    Mr Clarke and Dr Couzens disavow the proposition that the purpose of an order for costs would be to punish the Applicant. But that submission cannot sensibly be reconciled with their contention that it should cause the Applicant to justify the costs to the representative body. Such an outcome could only serve to sanction the Applicant for their decision to oppose the separate question being answered “yes”.

29    Mr Clarke and Dr Couzens also contend that the Court may, and ought, to make an order for costs to mark its disapproval of, in effect, the Applicant’s conduct of the litigation. The authorities on which they rely (as outlined at [9] above) were not cases involving the exercise of the discretion under s 85A of the Act. In any event, I am not satisfied that the Applicant’s conduct of the litigation was such as to warrant a mark of disapproval by the Court. That is for the following reasons.

30    There is no evidence before me as to the circumstances in which Murphy J ordered the separate question on 22 April 2025. I accept, as Mr Clarke and Dr Couzens submit (and contended in the offers), that the historical evidence supported the conclusion that John Couzens and Nicholas Couzens were the biological children of William Robinson, the biological son of John Robinson: cf, Fagan at [51] to [67], [79] to [82] and [84]. But the evidence adduced with respect to the separate question was not confined to historical evidence. It included lay witness testimony from, amongst others, Mr Ernest Kinsey on behalf of the Applicant. The outline of his evidence referenced oral history from the daughter of John Robinson (Ellen Rose King) that there was “no relationship” between her family and that of the descendants of John Couzens and Nicholas Couzens: Fagan at [49] and [87]. That oral history formed part of the basis upon which the Applicant, in their opening submissions, resisted a finding that the separate question be answered “yes”.

31    The importance of oral history in resolving questions of descent in native title cases cannot be overstated: Fagan at [13] to [15]. As events transpired, the oral history the subject of Mr Kinsey’s evidence did not discount the inferences available on the historical record because it was not accompanied by evidence of the facts as to why it could not be the case that William Robinson was the father of John Couzens and Nicholas Couzens: Fagan at [87]. That did not fully emerge, however, until Mr Kinsey gave oral evidence on the first day of the hearing of the separate question on 6 June 2025. Moreover, it is apt to emphasise that I did not make any adverse findings with respect to Mr Kinsey’s evidence and was satisfied that all concerned had done their best to assist the Court: Fagan at [28].

32    Thereafter, there is a question as to whether, properly advised, the Applicant ought to have persisted in their case. Following the lay evidence, the parties filed closing submissions. There was a further day of hearing on 21 July 2025. The arguments advanced on behalf of the Applicant (both orally and in writing) as to why the historical record ought to be attributed little weight were without substance: Fagan [73] to [75], [80] to [82] and [93] to [94]. As Mr Clarke and Dr Couzens emphasise, the Applicant was told as much in the second offer made 10 July 2025, before closing submissions were to be filed.

33    On balance, though, I do not consider that the conduct of the Applicant, even after the lay evidence hearing, was so unreasonable as to warrant an adverse costs order were I satisfied that I had the power to do so. I am not willing to find that the Applicant resisted, or persisted, with their opposition to a positive answer to the separate question for an ulterior purpose: cf, Reid at [56]. A feature of the evidence was that the parties on both sides of the dispute grew up with incomplete understandings of their family history: Fagan at [6]. Given those matters and the evidence of Mr Kinsey to which I refer above, I am not persuaded that it would be in the interests of justice to exercise the discretion to make an order that the Applicant pay Mr Clarke and Dr Couzens’ costs. Insofar as it concerns the conduct of the Applicant after the lay evidence hearing, I also place reliance on the relatively short period, and steps taken, between the lay evidence hearing (6 June 2025) and the conclusion of the separate question hearing (21 July 2025).

34    For all of the above reasons, there will be no order as to the costs of and incidental to the separate question ordered 22 April 2025.

Associate:

Dated:    4 February 2026

SCHEDULE OF PARTIES