Costs Update it doesnt matter who you are unreasonable conduct risks a cost order

What you need to know

• Costs have been sought against a range of parties in native title proceedings in 2021, including the State, a PBC, a Local Council and a claim group's solicitor.
• Although the general position remains that parties bear their own costs in the native title jurisdiction, the Federal Court will not hesitate to make costs orders in the face of unreasonable conduct.
• A claim group's solicitor was lucky to avoid a costs order in circumstances where the Court held their conduct was both unreasonable and unprofessional.

What you need to do

• Be reasonable!  Courts will respond to grandstanding or pursuit of pointless arguments with costs orders.

We follow native title costs decisions in our annual Native Title Year in Review to identify new principles and trends.

We reported on a number of costs decisions with adverse outcomes for some parties in our 1 April 2021 article "Costs Update: Courts call out unreasonable conduct with costs orders", 1 April 2021.  In April 2020, we reported on a rare exercise of the Federal Court's power to order costs against a solicitor personally in our Native Title Year in Review 2019 article " Costs update – Court extends costs order to solicitor propounding hopeless last minute application", 28 April 2020.

In 2021, we have seen an increasing number of costs applications affecting a range of parties.

Compensation claimant's solicitor at risk of personal costs order

In Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190, the Court ordered the dismissal of a compensation claim after an application by the State to have it struck out. We wrote about this decision in our Native Title Year in Review 2020 article "Procedural issues lead to strike out of compensation claims", 1 April 2021.

Various costs application were made against the compensation claimant and his solicitors, which were determined in Saunders on behalf of the Bigambul People v State of Queensland (No 3) [2021] FCA 444. These included applications that the claimant's solicitors personally meet the costs of various respondent parties.

Court inclined to order that the compensation claimant's solicitor personally pay the State's costs

The State initially indicated that it would seek a costs order against the claimant's solicitor personally, but later withdrew from this position.  The Court noted [at 24-25]:

In my opinion, the conduct of the applicant in filing a patently defective Form 4 compensation application, albeit upon his solicitors’ advice, should be regarded as unreasonable conduct... Further, the conduct of the applicant’s solicitors in advising the applicant to file an application that was patently defective was both unreasonable and unprofessional. The Form 4 plainly failed to comply with s 61(5)(c) of the NTA, and that should have been discernible from even the most rudimentary consideration by the applicant’s solicitors. I infer that the applicant’s solicitors either failed to consider the prospects of success of the application, or they were aware that it had no prospects of success but advised the applicant that it should be filed anyway. The compensation application in that form should never have been made.  If the State had maintained its application for orders for costs against the applicant’s solicitors, I would have been inclined to make such orders.

No order for costs in favour of the Rep Body or native title holders because they elected to join the proceedings and the claimant's conduct after that joinder was not unreasonable

Costs orders were also sought by Indigenous respondents to the compensation claims:

• the Representative Body, Queensland South Native Title Services (QSNTS), sought an order that the compensation claimants' solicitor pay QSNTS' costs;
• the registered native title holders sought an order that the compensation claimants pay their costs on an indemnity basis and, in addition, an order that the costs be paid by their solicitor personally.

The Court noted that the procedural history of the proceeding was relevant.  In particular, QSNTS and the registered native title holders did not apply to become parties until after the State filed its strike out application and the claimant's conceded that the compensation application was defective (foreshadowing an application for leave to amend.)

The Court denied QSNTS and the Indigenous respondents' costs applications because:

• the unreasonable conduct of the compensation claimant and his solicitors continued only until the first case management hearing, when they conceded that the compensation application was defective and indicated that they would seek leave to amend.  The application for leave to amend was reasonably arguable;
• QSNTS and the Indigenous respondents should not be awarded their costs incurred before they elected to become parties. They did not become parties until after the first case management hearing. The conduct of the applicant and his solicitors after the first case management hearing was not unreasonable.

The circumstances did not warrant departure from the usual position under section 85A(1) of the Native Title Act that each party bear their own costs.

Costs ordered against Council for unreasonable conduct in raising new appeal ground less than 24 hours before hearing

In District Council of Streaky Bay v Wilson [2021] FCAFC 181, the Full Court awarded costs against the District Council of Streaky Bay in favour of the Indigenous respondent and the State.

This matter arose in the context of an appeal by the Council from extinguishment findings made by the Federal Court Wilson v State of South Australia (No 4) [2020] FCA 1805. We wrote about this decision in our Native Title Year in Review 2020 article "Extinguishment principles: Federal Court zeros in on general law validity and confirms that 'major' earthworks need to have real impact", 31 March 2021 and the appeal in our article.

The Council was wholly unsuccessful in its appeal on the extinguishment issues.

The costs issue arose because the Council applied to amend its draft notice of appeal on the afternoon prior to the hearing, raising a new issue that was not raised at the trial. The Full Court refused this application and ordered that the Council pay the State's and the Indigenous respondents' costs of this eleventh hour application.

The Full Court held that the Council's conduct in raising a new ground less than 24 hours before the hearing of a fully programmed appeal was unreasonable within the meaning of s 85A of the Native Title Act.

State ordered to pay Local Aboriginal Land Council's costs for "untenable" and "unreasonable" cross-appeal

In Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210, the Full Court heard an appeal and cross-appeal against a determination that native title does exist in respect of land in Narooma, New South Wales.  We wrote about this decision in our article Providing connection becomes harder in 2021.

The matter arose in the context of a negative determination of native title made after a non-claimant application by a Local Aboriginal Land Council.  An appeal by the native title claim group was dismissed with no order as to costs.

The State brought a cross-appeal but had not actively participated in the hearing before the trial judge.  The Full Court was not impressed.  It dismissed the State's cross-appeal, and said [22]:

It is extraordinary for the Attorney to seek to set side on appeal a determination that the Attorney did not oppose at first instance (and where the Attorney was a party at first instance and had the opportunity to participate fully in the hearing at first instance).

The Full Court held at [159]:

… the contentions advanced on behalf of the Attorney were untenable and the bringing of the cross-appeal can be properly characterised as unreasonable within the meaning of section 85A(2).

The Full Court ordered the State to pay the Land Council's costs of the cross-appeal on a lump sum basis.

Aboriginal Corporation RNTBC ordered to pay 75% of Indigenous applicants' costs of proceedings relating to their membership of the native title holding group

In Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496, the Applicants sought a declaration in relation to their membership of the Nyiyaparli People.

Resolutions had been passed by the common law holders to refuse to recognise the Applicants as Nyiyaparli People and to refuse membership of Karlka Nyiyaparli Aboriginal Corporation RNTBC (PBC).  

For various reasons, the Court held that these resolutions were not decisions made under Nyiyaparli traditional law and custom and were not effective to refuse recognition of the Applicants as Nyiyaparli People. However, other remedies sought by the Applicants were refused.

In respect of costs, the Court held that although the Applicants had only been partially successful, it had been necessary for them to bring the proceeding, given the position taken by the PBC. 

The Court ordered that PBC pay 75% of the Applicants' costs of the proceeding. 

Authors: Roxane Read, Senior Associate and Leonie Flynn, Expertise Counsel.