SUBMISSIONS
28 At the hearing of the costs argument, counsel for the Birri-Gubba People argued that in preparing a matter for trial, the litigious landscape often changes. He pointed to the fact that it could be expected in ordinary litigation that some issues which were hotly contested at an interlocutory stage might fall away by the time of the trial as minds became focused on the real issues. And, he pointed out that since at least March 2007 all parties had been on notice that the description of the claim group would have to change in light of the latest anthropological research obtained by Birri-Gubba People as to the correct identity of the persons who could claim native title over the relevant lands and waters in the vicinity of Cape Upstart. Counsel for the Birri-Gubba People also argued that there were practical problems with the funding available to the land council.
29 The land council is presently the representative body under the Native Title Act. It was entitled to prioritise and make determinations as to the funding, staff, resources and complexity of this matter as one of a number for which it was responsible. Counsel argued that there was no basis on which the Court's discretion under s 85A of the Native Title Act was enlivened to warrant the making of a costs order against the Birri-Gubba People. He argued that the jurisdiction to award costs under s 85A should be only be exercised in circumstances where there were special or unusual features of the case, or where there had been conduct in the nature of an abuse of process, improper purpose, contempt or unreasonableness. In essence, that argument sought to confine the Court's power to award costs to circumstances which would warrant an order for costs on an indemnity basis in ordinary civil litigation (that is, in litigation where the Court's power to award costs does not have the constraint of s 85A(1) of the Act).
CONSIDERATION
30 For almost a year, the Birri-Gubba People asserted that there were persons from whom they wished to obtain evidence for the purpose of having that evidence preserved prior to the matter being ready for trial. That arose in the context that this application for the determination of native title was filed on 18 December 1998. Queensland pointed out that one might have expected that the elders and others in the society claiming the determination would have been identified and their ability to give evidence to support the claim ascertained, at least in general terms, by those representing the Birri-Gubba People long before 2006. On the other hand, the Birri-Gubba People argued in a general way, not limited to their own claims, that there had been substantial dispersal of the persons who had held native title at white settlement, including in the areas of Queensland, the subject of this claim.
31 Thus, persons who may still be able to speak of their connection to country, the customs and other factors connecting the claim group to the land the subject of the claim, may be scattered far and wide. Those persons may not necessarily be in ready or convenient locations to be interviewed by the legal representatives of the Birri-Gubba People. This was in part due to funding constraints upon the land council and the need for it to decide, among the various persons whose interests it was obliged to represent, which claims would be pursued and in what priority.
32 Because of the age and apparent state of health of a number of the members of the claim group, it was obvious that some steps ought to have been taken to preserve evidence, whether for the present application or the foreshadowed amendment to the claim group. Evidence taken from old, frail or sick members of the present claim group or the amended claim group would be available in any amended proceedings: see s 86 of the Native Title Act.
33 Nonetheless, it seems to me that until the decision not to put forward any person whose evidence was sought to be preserved, there had been no proper investigation by the Birri Gubba People of the nature of the evidence which could be given by any witnesses identified on the various lists filed with the Court and served on the State. As the sequential variations in the lists showed, some of the persons, on later investigation, were not in a fit condition to give evidence, and hence, should never have been included on a list in the first place. Others, for whatever unknown reason, were removed from the list. In adversarial proceedings, including matters such as this brought under s 61 of the Native Title Act, it is for the parties to determine which witnesses they call, if at all, and in what order. However, I am of opinion that it is likely that there are several persons who are likely to be able to give relevant evidence at the moment, but who may be too sick or no longer alive when these proceedings, as they are amended or evolve into other proceedings, are likely to go to trial.
34 On the evidence before me, the State has incurred substantial costs in complying with the orders and directions relating to the preservation of evidence and preparing for and attending the various directions hearings for that purpose. Here, a total of five lists emerged before the Birri Gubba People determined, without any explanation, that no witnesses were to be called whose evidence might be preserved.
35 I am of opinion that having regard to the history that I have set out above, the State has incurred substantial costs in seeking to comply with the regimes ordered for the purposes of progressing with hearings for the preservation of evidence. That expenditure has not had any value at all in the litigation because of the abandonment of that course by the Birri Gubba People.
36 The object of the Court is to decide the rights of the parties in and to resolve controversies. It is not to punish parties for mistakes they make in the conduct of their cases. Thus, the courts have developed principles as to when amendments may be made to pleadings to raise or change the form of the litigation, even at very late stages, provided that the other party can be compensated by an appropriate order for costs: Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 152-155 per Dawson, Gaudron and McHugh JJ.
37 I consider that it was unreasonable of the Birri Gubba People to present a total of five lists, none of which, on final consideration, produced even one person whom they wished to call. The Birri Gubba People were represented by lawyers and the land council at all times. They were not in the position of litigants in person unable to make informed forensic judgments or to properly present their case to the Court. On the evidence before me, no proper, considered attention was given to the inclusion of any of the persons in the five lists that were provided by the Birri Gubba People for the purposes of identifying whose evidence ought be preserved. This is evident from the fact that the end result is that no such witness has been identified, although one person who was clearly an appropriate witness, has unfortunately passed away in the meantime.
38 On a number of occasions in open court the state of preparation of the land council was disclosed as being in disarray. I have no doubt that there was a sincere attempt to identify persons whose evidence might need to be taken on a number of occasions. But the attempt does not appear to have been undertaken by a lawyer familiar with litigation or with a view to determining whether or not any of those persons ought to be called to give evidence and what evidence he or she could give until, ultimately, the forensic decision was taken not to call any of them.
39 In those circumstances, I consider that it would be unjust to require the State to bear all of its legal costs for an exercise which, in effect, has been a waste of time and resources. While the internal attention of the Birri Gubba People to the preparation of their case is one thing, the bringing of the State to court on a number of occasions for, what ultimately turned out to be no good purpose, has caused the incurring of costs which were unnecessary. In the ordinary course wholly successful parties will incur substantial cost in native title proceedings which they will not recover because of the prima facie rule in s 85A(1) of the Native Title Act that each party bear their own costs. In my opinion the present application for costs warrants recognition that expense over and above that which would ordinarily be incurred in these proceedings has been visited upon the State by the unreasonable way in which the Birri Gubba People have conducted the issue of preservation of evidence. I am satisfied that it would be unjust to the State to require it to bear the whole of the costs associated with preparing for and appearing at the directions hearings involving the issue of preservation of evidence.
40 It is impossible to be precise in these matters or to fix a sum with any scientific accuracy. In my view a fair allocation of the costs burden would be that the Birri-Gubba People pay 50% of the costs of the State relating to its preparation for and appearance at directions hearings between 1 December 2006 and 17 October 2007 in relation to the issue of what evidence ought be preserved.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.