Should the interlocutory applicants pay the applicant's costs?
4 Section 85A(1) and (2) of the NTA provide as follows:
(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.
5 The interlocutory application was a proceeding under the NTA and the applicant acknowledges that subs (1) applies in respect of their application for costs.
6 The applicant notes that, if read literally, subs (2) does not apply because it refers to acts or omissions of a "party" and the interlocutory applicants are not parties, but submits that, in the circumstances of this case, the principles applicable to s 85A generally, including in subs (2), should be applied in the exercise of the costs discretion under subs (1).
7 In that regard the applicant accepts, following Cheedy v Western Australia and Others (No 2) (2011) 199 FCR 23 at [9]; [2011] FCAFC 163 that:
(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 that 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.
8 The applicant also notes that in De Rose v State of South Australia (No 2) [2005] FCAFC 137 at [8]-[10], the Full Court further observed that s 85A(2) puts beyond doubt the extent of the Court's discretion in cases where a party has acted unreasonably.
9 Further, the applicant notes that the fact that an applicant is represented by a representative Aboriginal/Torres Strait Islander body does not preclude an award of costs. See Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635; Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 7) [2015] FCA 1404.
10 In this case, the applicant submits that the interlocutory applicants' conduct was unreasonable, or otherwise justifies the exercise of the Court's discretion to award costs, because:
(1) The interlocutory application was made late, and shortly before the proposed consent determination: see PKKP No 1 at [62]-[63]. This necessitated the applicant and the Court dealing with the interlocutory application on an expedited basis.
(2) The circumstances in which members of a claim group will be joined as respondent parties are rare: see PKKP No 1 at [18]-[19]. Despite clear statements in the case law to that effect, the interlocutory application was brought notwithstanding the fact that it lacked any real merit. The interlocutory applicants were represented by solicitors and counsel, so ought to have known better: see Sebastian v State of Western Australia [2008] FCA 926 at [55].
(3) In particular, as to the lack of merit, the disputation relied upon by the interlocutory applicants had a largely historical element to it and the proposed consent determination obviated or responded to the concerns of the interlocutory applicants: see PKKP No 1 at [54]-[55], [61], [65].
(4) Furthermore, the interlocutory applicants were involved in the decision making processes leading to the proposed consent determination, and those decisions were made by consensus: see affidavit of John Ashburton sworn 21 August 2015 at [13], [15]; affidavit of Graham O'Dell affirmed 7 August 2015 at [11]-[14], [20]-[21] (which evidence was generally accepted by the Court: see PKKP No 1 at [53]). It was unreasonable for the interlocutory applicants to use the Court process to seek to agitate their views when they had, but did not take up, the opportunity to agitate those views as part of the extensive claim group authorisation processes leading up to the proposed consent determination.
11 The interlocutory applicants, in resisting an order for costs, say that the ordinary order provided for by s 85A(1) should apply so that each party should bear their own costs.
12 They note that their standing to sue was not challenged, and say that their joinder application was sincerely and genuinely made for the purpose of seeking to ensure that the terms of the then proposed consent determination properly reflected the traditional laws and customs of the Kurrama and Pinikura people, specifically the principle that Kurrama people speak for Kurrama land: see affidavit of Joan Ashburton sworn 21 August 2015 at [22]-[23], [32]; affidavit of Sandra Hayes affirmed 18 August 2015 at [15], [32]- [33].
13 The interlocutory applicants further contend that the terms of the consent determination is a matter on which reasonable minds may differ and must be tailored to the relevant traditional laws and customs, as suggested by Beaumont and Von Doussa JJ in Western Australia v Ward and Others (2000) 99 FCR 316 at [205]; [2000] FCA 191.
14 The interlocutory applicants submit that they were of the view that the consent determination ought to provide for a Kurrama prescribed body corporate over Kurrama land. Such an arrangement is consistent with traditional laws and customs. It was not an unreasonable proposition to seek to advance. Control of Kurrama land by the land committee was not good enough for them. To contend or conclude that the joinder application lacked any real merit for this reason is, with respect, a harsh judgment of the interlocutory applicants.
15 The interlocutory applicants acknowledge the lateness of their application. They say the timing was unfortunate, but there is no proper basis for suggesting it was for any other reason than being when the interlocutory applicants had access to the resources necessary to bring the application. This reason for the lateness of their application goes more to the sincerity of the interlocutory applicants, than the reasonableness of their conduct. Ms Joan Ashburton has been very frank about her personal circumstances: see affidavit of Joan Ashburton at [50].
16 The interlocutory applicants say that they always acknowledged that circumstances in which dissentient claim members will be joined as respondents are rare. That their application did not succeed does not make their conduct in bringing the application unreasonable.
17 In my view, this is a case where the conduct of the interlocutory applicants in bringing the joinder application, virtually at the eleventh hour before the proposed consent determination in this proceeding, should be seen as an unreasonable course of conduct that justifies the Court, under s 85A(1), awarding the applicant the costs of responding to the joinder application.
18 Not only was the joinder application made virtually at the eleventh hour, the applicant and other parties being required to respond to it on an expedited basis, as the applicant submits, but the application was very unlikely to succeed in the circumstances relied on by the interlocutory applicants.
19 Historic concerns of the interlocutory applicants as to what might be called the coordination of the claimant group, and how it was proposed that the prescribed body corporate that would hold in trust the native title of the claimants should operate following a consent determination, had effectually been resolved well before the joinder application was made.
20 The situation was that the duly authorised applicant had done what was required of it, and the joinder application lacked efficacy. That the interlocutory applicants may individually hold strong views about the consent determination that the applicant proposed to consent to, after much claimant group consideration, is not to the point.
21 Accordingly, I find that the conduct of the interlocutory applicants in bringing the joinder application was unreasonable and should result in them paying the costs of the applicant in respect of the joinder application.