© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
[2020] FCA 76
Federal Court of Australia
2020-02-07
Mr P, White J
Original judgment source is linked above.
Number of paragraphs: 84
Counsel for the Adnyamathanha Applicants: Mr D Billington
Solicitor for the Adnyamathanha Applicants: Johnston Withers
Counsel for the Ngadjuri and Wilyakali Applicants: Ms T Jowett (4 March 2019) and Ms B Lena (4 April 2019)
Solicitor for the Ngadjuri and Wilyakali Applicants: South Australian Native Title Services
Counsel for the State of South Australia: Mr W Ambrose with Mr P Tonkin
Solicitor for the State of South Australia: Crown Solicitor for the State of South Australia
Counsel for the Pastoralist, Apiarists and Local Government interests: Ms C Divakaran
Solicitor for the Pastoralist, Apiarists and Local Government interests: Mellor Olsson
Counsel for Angelina Stuart: Ms K Eaton
Solicitor for Angelina Stuart: Spencer Gulf Law
Counsel for Timothy Campbell: Mr J White
Solicitor for Timothy Campbell: Campbell Law
24 February 2020 In the Appearances on the cover page in the field Counsel for the Ngadjuri and Wilyakali Applicants, the words "Ms T Jowett (4 March 2019) and" have been added before the words "Ms B Lena" and the words "(4 April 2019)" have been added after the words "Ms B Lena".
BETWEEN: VINCENT COULTHARD AND OTHERS NAMED IN THE SCHEDULE (Adnyamathanha No 1 Native Title Claim (SAD6001/1998)) First Applicant
VINCENT BRANSON AND OTHERS NAMED IN THE SCHEDULE (Ngadjuri Native Title Claim (SAD147/2010)) Second Applicant
BEVERLEY BATES AND OTHERS NAMED IN THE SCHEDULE (Wilyakali No 2 Native Title Claim (SAD417/2015)) Third Applicant
AND: STATE OF SOUTH AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE First Respondent
JUDGE: WHITE J DATE OF ORDER: 7 february 2020
WHITE J: 1 This judgment concerns applications by parties to native title proceedings for orders that an interlocutory applicant and her solicitor pay their costs of and incidental to the unsuccessful application. 2 The interlocutory applicant is Ms Angelina Stuart, an Adnyamathanha woman. The firm of solicitors is Campbell Law, of which Mr Timothy Campbell is the Principal. In these reasons, I will refer to Mr Campbell and Campbell Law interchangeably. 3 The interlocutory application giving rise to the application for costs was filed by Campbell Law on 11 December 2018 in the native title proceedings known as the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD6001/1998) (the Overlap Claim). 4 Each of the Adnyamathanha People, the Ngadjuri Nation and the Wilyakali Peoples had filed applications for the determination of native title over an area of land in the east of South Australia. To varying extents, the areas claimed in each application overlapped. 5 The firm Johnston Withers has acted for the Adnyamathanha People in relation to the Adnyamathanha Claim SAD6001/1998 since 1999. The Adnyamathanha applicant in SAD6001/1998 comprised eight persons, three of whom are deceased. The five survivors are Vincent Coulthard, Mark McKenzie (Senior), Beverley Patterson, Geraldine (Thathy) Anderson and Ms Stuart. 6 Following extensive discussions, in 2010 the three claimant groups provided anthropological evidence indicating that there is a single society made up of the three groups and that that single group has native title over the Overlap Area. Thereafter, there followed a mediation, conferences and detailed consideration by all parties, including the State, of the claims to native title. In October 2016, the State distributed a position paper describing the process it had undertaken and its reasons for recommending a consent determination. The principal parties then engaged in further negotiations concerning, in particular, native title mining agreements. 7 Despite these discussions, there was not complete unanimity on a determination being made by consent. On 26 February 2018, the Court made orders that the three claims in respect of the Overlap Area be combined into a single proceeding (the Overlap Proceeding), so as to facilitate effect being given to s 67 of the Native Title Act 1993 (Cth) (the NT Act). On two separate occasions, the Court put in place a timetable for a trial of the issues in the Overlap Proceeding. The second of these occasions was on 5 July 2018, when the Court made orders programming the Overlap Proceeding to a trial to commence on 3 June 2019. However, shortly afterwards, final agreement was reached and, on 3 September 2018, the Court listed the Overlap Proceeding for consent determination on Friday, 14 December 2018 in the Bimbowrie Conservation Park. That date was confirmed at the Case Management Hearing held on 12 October 2018. Later, and by reason of local weather conditions, the place for the consent determination was changed to Orroroo. 8 On 14 December 2018, the Court made the consent determination of native title over the Overlap Area: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993. That determination contained a division of the Overlap Area into three sub-areas, referred to as West, Central and East. A combination of the Adnyamathanha People and the Ngadjuri Nation were recognised as native title holders for the West area; a combination of all three people were recognised as the native title holders for the Central area; and a combination of the Adnyamathanha People and Wilyakali People were recognised as the native title holders for the East area. 9 It is the events occurring shortly before the making of the consent determination on 14 December 2018 which give rise to the present costs applications. 10 On Tuesday, 11 December 2018, Campbell Law, acting for Ms Stuart, filed an interlocutory application seeking orders as follows: 1. That the Court recognises Angelina Stuart as an amicus curiae. 2. That the Orders of His Honour Justice White on 12 October 2018 be varied so that Order 2 is vacated. 3. Further Orders as the Court deems fit. 11 The order which the interlocutory application sought to have vacated was the order that the consent determination be held at 11 am on Friday, 14 December 2018 in Bimbowrie. 12 The interlocutory application was supported by an affidavit from Ms Stuart made on 9 December 2018. It was prepared for Ms Stuart by Mr Campbell. In that affidavit, Ms Stuart deposed: [1] I make this affidavit as a friend of the court to inform the court that I have not signed and do not agree with the Consent Determination proposed for the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim ('the Claim'). [2] I believe that I have an obligation to the Court and to Adnyamathanha claimants to advise that I do not consent to the Consent Determination for the Claim. [3] I believe that I am a friend of the court because I have a legal interest in the Claim. [4] I have not been adequately informed or consulted about the Claim. [5] As a named Applicant, I have been asked by Johnston Withers (lawyers for the Claim) to sign the Consent Determination but I have refused (see Annexure marked 'AS1' being a letter from Mr Graham Harbord dated 14 November 2018). [6] I was born on Adnyamathanha country. [7] I know that Geraldine (Thathy) Anderson has also not signed the Consent Determination. 13 Given the effect which the orders sought by Ms Stuart, if granted, would have had on the arrangements made by the Court and the parties for the on-country consent determination only three days later, I listed para [1] of the interlocutory application (in effect the application for leave to be heard as an amicus) for urgent hearing on 13 December 2018. There was no other purpose for that hearing. 14 At the hearing on 13 December 2018, Mr Campbell appeared for Ms Stuart. All parties (with the exception of three who were excused) were represented by counsel, but the Ngadjuri and Wilyakali Applicants had common representation. 15 With the exception of the Commonwealth of Australia, all parties opposed the Court making the orders sought by Ms Stuart. The Commonwealth was unable to express a view on the application as Campbell Law had not served it with a copy of the interlocutory application and supporting affidavit. 16 At the conclusion of the hearing, I refused the application, giving ex tempore reasons: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 2094. 17 The three applicant groups and the State of South Australia then applied for orders that Ms Stuart and her solicitors pay their costs of and incidental to Ms Stuart's interlocutory application. I heard evidence and submissions on those applications on 4 March and 4 April 2019. During the course of the hearing on 4 April 2019, the State withdrew its application for an order that Ms Stuart pay its costs. However, the State pressed the application for an order that Mr Campbell personally pay the costs incurred by it of and incidental to Ms Stuart's interlocutory application of 11 December 2018. 18 There are further matters of background to be noted before turning to the submissions of the parties. 19 At the Case Management Hearing on 12 October 2018, Mr Campbell made an oral application for leave to be heard as amicus curiae on behalf of Ms Geraldine Anderson. Like Ms Stuart, Ms Anderson is one of the persons who comprises the Adnyamathanha Applicant in SAD6011/1998. Mr Campbell said that Ms Anderson wished to be heard as amicus so as to "put to the Court … two issues": first, that the persons comprising the Adnyamathanha Applicant had not met to instruct Johnston Withers to consent to the determination, and, secondly, an unarticulated issue of evidence. 20 I refused that application, giving brief oral reasons to the following effect: (a) Ms Anderson was one of the persons who comprised the applicant in the Adnyamathanha application who were represented in the proceedings by Johnston Withers; (b) the authorities indicate that applicants in applications for native title act jointly and that the persons comprising the applicant are not entitled to separate representation; and (c) it would be a circumstance of vexation to have one person such as Ms Anderson represented by two different lawyers in the same proceedings. 21 Later in the same hearing, I refused an oral application made by Mr Campbell for an extension of time in which Ms Anderson could appeal against the refusal of the application to hear her as amicus curiae. 22 Ms Anderson did not seek leave to appeal against my decision. She did, however, seek leave to appeal against a "judgment" said to have been given on 28 September 2018 by which the Registry was directed not to accept for filing three affidavits from Ms Anderson. In the affidavit supporting the application for leave to appeal, Ms Anderson deposed that she wished to file the affidavits in order to inform the Court that she did not agree to the proposed consent determination and had not given instructions to Johnston Withers to sign it on her behalf. Ms Anderson filed the application for leave to appeal herself but, on 19 October 2018, Campbell Law filed a Notice of Acting on her behalf. Ms Anderson did not proceed with the application for leave to appeal as, on 21 November 2018 (the day after the Adnyamathanha, the Ngadjuri and the Wilyakali Applicants (the latter two acting together) had filed their respective outlines of submissions) and less than a week before the application was listed for hearing, she filed a Notice of Discontinuance. 23 At the hearing of the respective applications for costs, Ms Stuart and Mr Campbell were separately represented. The Court received affidavits from Mr Richard Bradshaw and Mr Graham Harbord, the two solicitors within Johnston Withers who had the conduct of the application SAD6001/1998 on behalf of the Adnyamathanha People; from Mr Peter Tonkin, an executive solicitor within the Crown Solicitor's Office with conduct of the matters on behalf of the State of South Australia; two affidavits made by Mr Campbell; and one affidavit made by Ms Stuart. None of Mr Bradshaw, Mr Harbord or Mr Tonkin was required to attend for cross-examination. Mr Campbell and Ms Stuart were cross-examined. 24 I accept the evidence of Mr Bradshaw, Mr Harbord and Mr Tonkin. Apart from some minor matters, their evidence was not challenged. 25 In her affidavit, Ms Stuart acknowledged that Mr Harbord and Mr Bradshaw had, in the months before December 2018, telephoned her regularly to see if they could bring the consent determination to her for her signature. She said that she had told them: I wasn't in favour of signing, as I had not been part of the negotiations. I reiterated my concerns that critical information had been overlooked. 26 Ms Stuart went on to depose that she had been born and brought up in the Overlap Area and had a special connection with it. In this respect she deposed: [14] My primary concern related to the areas at Oulnin, Baratta and the little lake at Koonamore Station, Waukaringa, Titalpa, Mount Victor, Plumbago, and the Mundi Mundi Plains. I wanted to share stories of significance relating to the bronze wing pigeon, the water hens and the ducks which are in the little lake at Koonamore Station, the trail of the spirit Eagle Hawk (Wildu Urngie) and the spirit of the rock wallaby that went to Wirrealpa from Plumbago. [15] My paternal grandfather, father and uncles occupied these areas of the land from the 1920s onward and lived off of the land. Due to respect to the Wilyakalis and Ngadjuris, I would have liked to have sat down and discussed the land as an Adnyamathanha elder, and looked at the spiritual significance of the land, the dangers, and respect of long ago, as was told to me as a child. … [20] In the negotiations I was overlooked and treated as though I was irrelevant. Even though I am a director of ATLA, I wasn't on the negotiating team. I simply wanted to safeguard the stories, and I was concerned that the younger ones were unfamiliar with the stories of their lands. [21] I was born and raised on the dirt, and experienced a traditional childhood. I remember being told stories about the land. [22] I was born at Martin's Well station, and I recall a lot of family members living around me and I heard many stories relating to places such as Oulnina, little lake at Kernamore Station, Beratta, Waukaringa, Mount Victor, Mundi Mundi Plains and Plumbago, which connected to the Adnyamathanha stories and traditions. [23] I was educated to Grade 3 at Blinman School. My formal education taught me to read and write, but that was about all. [24] From the age of ten years I returned to live on my traditional lands near Martin's Well (Wirrealpa Station) being part of the area, the subject of the Consent Determination. Kernamore Station and Beratta were not too far from Martin's Well. [25] I feel strongly about that part of the world, and a (sic) have a direct tie to it, unlike many of the following generations of the Adnyamathanha group, who were raised in towns such as Port Augusta. I go back to those lands every chance I get. [26] I heard many, many stories about that land. … [30] I wanted to sit down with the Wilyakali people about these matters. [31] I know the specific areas that the spiritual areas relate to. Delay in filing Interlocutory Application [32] I wanted to get the message to the groups that the important information (Adnyamathanha stories running through the subject land, and plant information) needed to be taken into account. … [42] I simply wanted an opportunity to share the stories relevant to the land, with the Wilyakali group. I was hoping the making of the Consent Determination could be paused to enable this to occur. 27 In her cross-examination, Ms Stuart repeated that her wish had been to sit down with the Wilyakali and Ngadjuri to talk about the area and to share the stories which she knew about it. She said that she had not wanted to stop the consent determination but did say that she wished for it to be "paused". Ms Stuart's explanation in her affidavit of her purpose in bringing the interlocutory application of 11 December 2018 was not challenged in the cross-examination, including by Mr Campbell. Accordingly, I accept that her concern had been to "safeguard the stories" by explaining them to the Wilyakali and the Ngadjuri, in particular, the Wilyakali. 28 Following a waiver of privilege by Ms Stuart, Mr Campbell was assisted in his evidence by reference to the contents of his file. The file was also produced for inspection by the legal practitioners for the parties seeking the costs orders, although some documents recording Ms Stuart's instructions concerning the land had been removed from it. He was cross-examined about a number of the entries on the file. A striking feature of Mr Campbell's evidence was the number of occasions on which he said that he could not remember matters concerning his communications with Ms Stuart, the content of those communications, or the matters to which he had adverted at the time he was acting for her. It was not suggested by any counsel that Mr Campbell was not being truthful in stating his lack of memory and it is accordingly unnecessary to make a finding in that respect. However, the very lack of memory to which Mr Campbell testified has caused me to have reservations about the reliability of some of his evidence.
Statutory provisions 29 Section 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) vests the Court with the power to award costs. The power must be exercised judicially and in accordance with the general legal principles pertaining to the law of costs: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192. The Court has a wide discretion. It may order a non-party to pay costs: Knight v FP Special Assets. It may also order a party's lawyer to bear costs personally (s 43(3)(f)). 30 The general principle is that costs follow the event, in the absence of special circumstances justifying some other order: Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 at [11]. 31 As the underlying proceedings are native title proceedings, account must be taken of s 85A of the NT Act, which provides: 85A 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. 32 The principles concerning the application of s 85A were summarised by the Full Court in Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [9] and confirmed by the Full Court in State of Western Australia v Banjima People [2016] FCAFC 46 at [4]: … (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]. 33 The Adnyamathanha, Ngadjuri and Wilyakali Applicants submitted that s 85A has no application presently as it is directed to the costs of a "party" to native title proceedings. They contended that Ms Stuart is not, in her own right, a party to the proceedings, and referred in support to Anderson on behalf of the Wulli Wulli People v Queensland (No 2) [2012] FCA 339; (2012) 202 FCR 29. 34 In my view, s 85A is applicable because the entities seeking the costs (the three applicant groups and the State) are parties to the native title proceedings. That is sufficient to attract the operation of s 85A. However, it is not necessary to express a concluded view on that question because, for the reasons which follow, I am satisfied that it is appropriate for the Court to make orders having the effect that the three applicant groups and the State should not have to bear their own costs of Ms Stuart's application.
The claim of the three applicant groups and the State 35 In addition to seeking orders that Ms Stuart and Mr Campbell pay their costs, each of the three applicants and the State submitted that they should be entitled to costs assessed on a solicitor/client basis. 36 They contended, first, that the Court should apply the ordinary rule that costs follow the event, with the consequence that Ms Stuart, as the unsuccessful applicant, pay the costs which they incurred in defending her interlocutory application. 37 Secondly, they submitted that Ms Stuart's conduct in bringing the interlocutory application was plainly unreasonable, having regard to a number of circumstances: (a) in 2001, a dispute had arisen between the persons comprising the Adnyamathanha Applicant in SAD6001/1998. That dispute was resolved on 18 July 2003 on terms set out in a settlement deed to which a number of persons, including Ms Stuart and the other persons comprising the Adnyamathanha Applicant in SAD6011/1998 and the Adnyamathanha Traditional Lands Association Aboriginal Corporation (ATLA), were parties. By that deed, each of the persons comprising the Adnyamathanha Applicant agreed to, and did, enter into an "Authorising Deed of Agreement". The terms of each of the Authorising Deeds of Agreement were identical. In the deed which she executed, Ms Stuart agreed: 1. [Angelina Stuart] in relation to the native title determination application SG6001/1998 made on behalf of the native title claim group known as the Adnyamathanha People, agree to continue to act as a named applicant and hereby acknowledges that [she] is authorised by the native title claim group and is only empowered to act as an applicant and exercises the powers vested in [her] as an applicant by the Native Title Act 1993 provided that [she] at all times complies with the following conditions: (a) in compliance with s 61 of the Native Title Act 1993, and for all other purposes, [Angelina Stuart] will only take steps as an applicant jointly with all other persons named as applicants in the Application, and will not attempt to deal with any matters arising in relation to the Application as an individual or otherwise then jointly with the other named applicants. (b) [Angelina Stuart] will deal with matters arising in relation to the application in the manner directed and in accordance with the decisions of the Governing Committee of [ATLA]. (c) [Angelina Stuart] will not deal with any matters arising in relation to the application except in the manner directed and in accordance with the decisions of the Governing Committee of [ATLA]. … (h) [Angelina Stuart] will at all times act in accordance with the rules and by-laws of [ATLA]. … 2. [Angelina Stuart] acknowledges that the native title claim group for the Application have vested their power to give the authorisation required by s 61 of the [NT Act] in the manner set out in s 251B(b), in the Governing Committee of [ATLA] in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group for the Application. 3. [Angelina Stuart] also acknowledges that the process agreed requires that [she] and each of the other named applicants not make any decision or take any steps except in the manner directed and in accordance with the decisions of the Governing Committee of [ATLA]. (b) Johnston Withers had reported regularly the progress of its discussions in relation to the Overlap Proceedings to meetings of the Adnyamathanha Claim Group, to general meetings of ATLA, and to meetings of directors of ATLA. Ms Stuart had been a director of ATLA for most, if not all, of its existence, and had attended meetings at which the progress of the Overlap Proceedings had been discussed and so had been informed of the progress of the application; (c) in particular, Ms Stuart had attended the meeting of the ATLA directors held at Wilpena on 27 October 2017 at which separate presentations in relation to the form of the consent determination then proposed had been made by Mr Harbord, Mr Tonkin and by Ms Abigail Steed (the solicitor for Kalkaroo Copper Limited and Havilah Resources Limited). Following the presentation, the ATLA directors resolved to continue the process towards the consent determination and to recommend its approval at the forthcoming General Meeting of ATLA; (d) Ms Stuart had attended the combined General Meeting of ATLA and the meeting of the Adnyamathanha native title holders held in Hawker on 15 December 2017 which had supported entry into the consent determination providing that particular additional conditions were satisfied; (e) although by reason of illness Ms Stuart had not attended the meeting of ATLA directors held on 24 April 2018 or a Special General Meeting of ATLA members and the Adnyamathanha native title holders held in Quorn on 12 May 2018, she had been informed in some detail of the terms of the proposed consent determination which resulted from further negotiations between the applicant claim groups and the State Government and a mediation between the three applicant groups conducted by the National Native Title Tribunal on 13 and 14 March 2018. This occurred because Mr Bradshaw had, shortly before the Special General Meeting held on 12 May 2018, made a special trip to Port Augusta to meet Ms Stuart. Mr Bradshaw was accompanied at that meeting by one of Ms Stuart's sisters, Vivianne McKenzie, who was also the Deputy Chair of ATLA and by another solicitor from Johnston Withers. During the course of the meeting with Ms Stuart, which lasted approximately five hours, Mr Bradshaw gave her a detailed explanation of the proposed consent determination and answered her queries. For much of the meeting, Ms Stuart's daughter, Ms Dawn Likouresis and Mr Michael Anderson (Geraldine Anderson's son and former chair of ATLA) were also present. Ms Stuart expressed to Mr Bradshaw misgivings about signing the consent determination; (f) towards the conclusion of the meeting on 7 May 2018, Ms Stuart asked Mr Bradshaw to discuss the proposed consent determination with a solicitor, Mr John Bolton, who had been providing her with advice. Mr Bradshaw and Mr Harbord met with Mr Bolton for this purpose on 10 May 2018; (g) at the General Meeting of ATLA and the Adnyamathanha native title holders held on 12 May 2018 in Quorn, those present resolved to proceed with the consent determination in the terms then proposed; (h) on 15 May 2018, in a telephone conversation lasting approximately 30 minutes, Mr Bradshaw explained to Ms Stuart the decision which had been made at the Quorn meeting. He informed her that the consent determination was expected to be made later in 2018; (i) a meeting of the directors of ATLA was held at Hawker on 17 August 2018. Mr Harbord, who attended the meeting, deposed that a detailed report was given to directors concerning the continuing negotiations towards the final drafting of the consent determination and reported that it was anticipated that each of the applicant groups would sign the consent determination on 3 September 2018. The meeting resolved that the consent determination should be signed. It directed that, if it was necessary to do so, all of the persons comprising the Adnyamathanha Applicant, including Ms Anderson and Ms Stuart, sign the consent determination in accordance with the terms of the Authorising Deeds of Agreement. Although the evidence on the topic is not express, it suggests that Ms Stuart was present for part of the meeting on 17 August 2018. It is reasonable to infer (and I do infer) that if Ms Stuart was not present at the time of the resolution, she had been informed soon after of its terms; (j) Mr Harbord tabled a copy of the signed consent determination at the meeting of directors of ATLA held at Hawker on 16 October 2018. That meeting passed the following resolution: That, following the authorisation given at the general meeting on 12 May 2018, ATLA ratifies the final consent determination in relation to [the Overlap Area] and confirms its approval of the signing of the consent determination by the lawyer for the Adnyamathanha. Ms Stuart was not at the meeting on 16 October 2018 but it is clear from a letter sent by Mr Harbord to Ms Stuart on 14 November 2018 that she was informed of the resolution soon afterwards; (k) by bringing the interlocutory application on 11 December 2018, Ms Stuart was acting in breach of the obligations she had accepted in the Authorising Deed of Agreement and contrary to the resolutions of the Adnyamathanha Claim Group and the decisions of the ATLA directors to which I have just referred; (l) Ms Stuart filed the interlocutory application extraordinarily late, only three days before the date of the scheduled consent determination; (m) Ms Stuart must have been made aware that the application made by Mr Campbell on 12 October 2018 for leave to Ms Anderson to address the Court as amicus curiae had failed; and (n) considered objectively and properly advised, Ms Stuart should have realised that her application was doomed to fail. The ex tempore reasons for the refusal on 13 December 2018 indicate why that was so.
Should Ms Stuart bear the costs of the three applicant groups? 38 In submitting that Ms Stuart's action in bringing the application of 11 December 2018 was not unreasonable, her counsel referred to her limited education (she was educated to Year 3 level) and lack of sophistication in legal matters, her poor state of health, the strong feelings which she has in relation to the Overlap Area, her belief that appropriate account had not been taken of her views in the decision of the Adnyamathanha People to consent to the determination, her desire to share the stories about the land, and her reliance on Mr Campbell. Counsel submitted that in bringing the application, Ms Stuart had done no more than accept the legal advice he had proffered. 39 I accept that the factual matters on which this submission is based are established by the evidence. In particular, I accept Ms Stuart's evidence that she had explained to Mr Campbell that she wished to convey to Mr Harbord and Mr Bradshaw what she knew about her area. 40 The question of whether Ms Stuart did act unreasonably in bringing the application is to be determined objectively having regard to all the circumstances. Those matters are not confined to Ms Stuart's personal circumstances as emphasised by her counsel. On that basis, the conclusion that Ms Stuart did act unreasonably is almost inevitable. Not only did Ms Stuart bring an application to be heard as amicus, she did so when such an application was almost certainly bound to fail. The reasons given in the ex tempore judgment of 13 December 2018 indicate why that is so. Moreover, an application to be heard as an amicus curiae was both unnecessary and inappropriate as a means of achieving Ms Stuart's stated purpose, namely, relaying to the Wilyakali and the others the stories and experience she had concerning places within the Overlap Area so as to safeguard them. As that was her principal aim, she could by informal means have sought meetings with the Wilyakali and others for that purpose. 41 Ms Stuart had known that the directors of ATLA had resolved to sign the consent determination at the meeting on 16 October 2018. The evidence did not indicate when she first learnt that Mr Harbord had signed the consent determination on behalf of the Adnyamathanha Applicant, but it is reasonable to infer (and I do) that she had known that that was so for several weeks before 11 December 2018. Ms Stuart should have known that the lateness of her application would be a cause of vexation to the three applicant groups and the State because at the time, they were making their final preparations for the on-country consent determination. The very lateness of the application made the bringing of it unreasonable. 42 The fact that Ms Stuart brought the interlocutory application on the advice of Mr Campbell is not exculpatory, at least as between her and the applicant groups. It is not uncommon for an unsuccessful litigant to have relied on the advice of a legal practitioner. Moreover, as will be seen, I accept Mr Campbell's evidence (which is supported by his file notes) that he did advise Ms Stuart on more than one occasion that she faced the potential for an adverse costs order if her application failed. I reject Ms Stuart's evidence to the contrary. 43 Accordingly, I am satisfied that it is appropriate that an order be made that Ms Stuart pay the costs of the Adnyamathanha People, the Ngadjuri Nation and the Wilyakali People of and incidental to her interlocutory application of 11 December 2018.
Should Ms Stuart be ordered to pay the costs on a solicitor/client basis? 44 It is established that costs on a solicitor and client basis may be ordered when there is some special or unusual feature of the case to warrant an exercise of the discretion in that way: Preston v Preston [1982] 1 All ER 41 at 59. 45 On my understanding, the application of the Adnyamathanha People, the Ngadjuri Nation and the Wilyakali People that Ms Stuart pay their costs on a solicitor/client basis was but faintly pressed. Counsel for the Adnyamathanha submitted only that "in light of Ms Stuart's unreasonable behaviour" the costs order against her should be on a solicitor/client basis. Counsel did not seek to develop that submission by reference to the principles identified in the authorities concerning awards of solicitor/client costs. 46 In these circumstances, while I do consider that Ms Stuart's conduct in bringing the interlocutory application was unreasonable, I am not satisfied that it is appropriate that the costs which she must pay to the Adnyamathanha, Ngadjuri and Wilyakali be on other than a party/party basis.
Should an order for costs be made against Mr Campbell? 47 By s 37N of the FCA Act, the parties to a civil proceeding before the Court are required to conduct the proceeding in a way consistent with the overarching purpose stated in s 37M. This requires parties to litigation to conduct themselves in such a way as to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 48 By s 37N(2) of the FCA Act, a party's lawyer must, in the conduct of civil proceedings before the Court, take account of the overarching purpose and assist the party to comply with that duty. In exercising the discretion to award costs in the civil proceeding, the Court must take account of any failure by the party, or the party's lawyer, to comply with the duties imposed by s 37N(1) and (2). 49 The provisions in s 37N apply as much to persons seeking to be heard in proceedings as amicus curiae, and their lawyers, as they do to the parties directly engaged in the litigation and their lawyers. 50 As already noted, s 43(3)(f) of the FCA Act is an express source of power in the Court to order a party's lawyer to bear the costs personally. 51 The principles which guide the Court when considering to exercise the discretion under s 43(3)(f) of the FCA Act have been discussed in a number of the authorities, including White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806, (1998) 156 ALR 169 at 231; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50, (2012) 200 FCR 154 at [72], [84]; Mijac Investments Pty Ltd v Graham [2013] FCA 296 at [45]-[49]; Mitry Lawyers v Barnden [2014] FCA 918 at [39], [42]-[43]; and Ryan v Primesafe [2015] FCA 8, (2015) 323 ALR 107 at [87]-[92]. 52 These authorities indicate that the power to award costs against a party's lawyer should be exercised with considerable caution and only in clear cases. It is convenient to repeat the summary of Wigney J in Mitry Lawyers, at [42]: [42] … 1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer. 2. Something which involves "unreasonable conduct" is required. 3. What constitutes unreasonable conduct will depend on the circumstances of the particular case. 4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success. 5. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice. 6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless. 7. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them. 53 The State (whose submissions were adopted by the applicant parties) submitted that Mr Campbell's conduct in bringing the application on behalf of Ms Stuart had been unreasonable because he had either failed to inform Ms Stuart that the corresponding application of Ms Anderson had been unsuccessful and/or that the application had no reasonable prospects of success, or had nevertheless brought the application on her instructions despite knowing that it had no reasonable prospects of success; because he had failed to give proper consideration to the legal and factual issues which such an application raised; and because he had been plainly incorrect in thinking and contending to the Court (as he did) that "the only way" in which Ms Stuart could make her views known to the Court was by seeking leave to be heard as an amicus. 54 The State also submitted, initially, that both Ms Stuart and Mr Campbell had been motivated by an ulterior purpose in bringing the interlocutory application. It submitted that the ulterior purpose had been to defer the making of the consent determination because, until it was made and the prescribed body corporate identified, any mining agreement with respect to the Overlap Area could, by reason of provisions in Pt 9B of the Mining Act 1971 (SA), be made only with all the named applicants in a registered native title claim. The State noted that Ms Stuart and Ms Anderson had, in October 2017, refused to sign a mining agreement with respect to the Kalkaroo Copper Mine even though the terms of the agreement had been negotiated over many years and agreed with the Adnyamathanha Claim Group. By deferring the making of the consent determination, Ms Stuart could prolong the period during which the mining agreement to which she was opposed could be made. However, during the costs hearing, counsel for the State abandoned that submission. Accordingly, it is not necessary for the Court to make and finding concerning it. 55 It is a very important consideration that Mr Campbell acted for Ms Stuart on a pro bono basis. As his counsel submitted, practitioners acting pro bono perform a valuable function and it would be unfortunate if they were deterred from doing so by the risk of costs orders against themselves. 56 However, having regard to the authorities and being very mindful of the caution which is appropriate, I am satisfied that it is appropriate in the circumstances of this case to make the exceptional order sought by the applicant parties and the State concerning Mr Campbell. In order to explain why that is so, it is necessary to review in some detail the circumstances which led Mr Campbell to make and pursue the application on Ms Stuart's behalf. 57 It is apparent that Mr Campbell commenced providing advice to Ms Anderson and Ms Stuart in relation to the signing of the proposed consent determination in at least late 2017. However, it seems that, during 2018, Mr Campbell was acting only for, and receiving instructions from, Ms Anderson. On 2 May 2018, Mr Campbell sent a letter to Johnston Withers setting out information which he contended had to be taken into account and which warranted the rejection of the consent determination in the terms then proposed. 58 By letter dated 6 October 2018 to Johnson Withers, Mr Campbell attached a memorandum signed by Ms Stuart and two others supporting a request to Johnston Withers that they file in the Overlap Proceeding affidavits made by Ms Anderson. Johnston Withers declined to do so. Ms Anderson then sought herself to file the three affidavits, but the Registry refused to accept them for filing. 59 As noted earlier, on 21 November 2018 Ms Anderson discontinued her application for leave to appeal to the Full Court against a direction that the three affidavits not be accepted for filing. On the following day, 22 November 2018, Ms Stuart telephoned Mr Campbell's office and spoke to a law clerk. The law clerk recorded only Ms Stuart's name and contact details. 60 Later on 22 November 2018, Mr Campbell sent the following letter to Ms Stuart: Dear Angelina Adnyamathanha, Ngadjuri, Wilyakali Overlap Native Title Claim in the Federal Court - SAD6001 of 1998 - Area C&F As you know from Geraldine Anderson, we have been representing and assisting Ms Anderson in various matters including trying to stop the Consent Determination (CD) in the Adnyamathanha, Ngadjuri, Wilyakali Overlap Native Title Claim matter (the Overlap matter). Geraldine has given her agreement for Campbell Law to represent you in making an application to Court, in another attempt to stop the CD. Geraldine has waived any conflict and consents to us acting for you. We would like to put in an application to make you a "friend of the Court" with a legal Native Title interest in the Overlap matter. If that application is successful we will be able to tell the Court that you, as a named Applicant, have not authorised the CD and then explain to the Court your close connection to the land. We will draft an affidavit for you to swear or affirm and provide the Court with a copy of the letter recently sent to you by Johnston Withers which makes clear that they are still trying to get you to authorise the CD despite them telling the Court that they have authority to sign the CD on behalf of the Adnyamathanha Applicant. Would you please contact Tim Campbell on [number redacted] to discuss. We look forward to hearing from you Yours sincerely 61 In his cross-examination, Mr Campbell said that he could not recall having given Ms Stuart any advice before sending that letter. He acknowledged that, had he given advice, he would, in accordance with his usual practice, have made a file note to that effect. Mr Campbell's file did not contain any record of a communication in which he had given such advice. He also acknowledged that the Court could infer that, if he had not provided the advice before sending the letter to Ms Stuart, no one else within his firm had done so. It is pertinent that the letter itself does not make any reference to a conversation between Mr Campbell and Ms Stuart earlier that day. On the contrary, the tone and content of the letter is suggestive of Mr Campbell making his contact with Ms Stuart by means of the letter itself. The combined effect of these matters suggests that Mr Campbell sent the letter of 22 November 2018 on the basis of a conversation he or a member of his staff had had with Ms Anderson and the conversation which Ms Stuart had had with his law clerk, and without himself speaking to her. 62 In these circumstances, I am satisfied that Mr Campbell had not given any advice to Ms Stuart before sending his letter of 22 November 2018 to her. His "advice" was contained in the letter itself. 63 A number of matters about the letter of 22 November 2018 are pertinent presently: (a) the letter is premised on there being a new retainer between Ms Stuart and Campbell law, but it did not indicate the basis on which Campbell Law was willing to act for Ms Stuart; (b) the letter assumed that Ms Stuart wished to make "another attempt to stop the CD"; (c) rather than Campbell Law seeking instructions from Ms Stuart about her concerns, or about the matters which had led her to contact Campbell Law earlier that day, the letter told her that it was Campbell Law which would like to make an application "to make you a "friend of the Court" with a legal Native Title interest in the Overlap matter". It was only after Ms Stuart had been told what Campbell Law wished to do and of the action it would take that Ms Stuart was asked to contact Mr Campbell "to discuss"; (d) the letter told Ms Stuart that Campbell Law would draft an affidavit for her to make: it did not seek her instructions to do so, let alone seek instructions from her as to the content of the matters to which she may wish to depose in the affidavit; (e) the letter did not contain any advice as to the prospects of success of an application for Ms Stuart to be heard as amicus curiae, or as to the liability for costs she may incur in bringing such an application; and (f) the letter did not inform Ms Stuart of the fate of the oral application made by Mr Campbell for Ms Anderson to be heard as an amicus, and of the reasons it had failed. 64 The strong impression one has from the letter of 22 November 2018 is that it was Mr Campbell who determined the course of action set out in the letter (an application by Ms Stuart to be heard as amicus) even before he had sought instructions from Ms Stuart as to her concerns and before he had provided advice to her as to the means by which those concerns could be addressed. 65 Mr Campbell's file indicates that he spoke to Ms Stuart twice on 26 November 2018, but his conversations appear to have been brief. A file note indicates that he told Ms Stuart that he was "still working on your application". 66 Mr Campbell had a longer telephone conversation with Ms Stuart on 27 November 2018. His file note does not contain any record of advice given to Ms Stuart on that occasion. He did, however, appear to take some instructions from her concerning the content of her affidavit. Mr Campbell himself testified to having taken instructions from Ms Stuart on this day. He gave the following evidence: Q: [W]hat did [Ms Stuart] say to you by way of instructions which led you to record "friend of the Court"? A: That she wished to be heard. I can't remember specifically, your Honour, but, generally, that she wished to be heard, and that she had something to say to the Court. And then I would have explained that that it's - the legal term is "friend of the Court". 67 The inference to be drawn from this evidence (which I do draw) is that Mr Campbell informed Ms Stuart that, if she wished to say something to the Court, the means by which that was to be done was by applying to be heard as a "friend of the Court". Mr Campbell does not appear to have clarified with Ms Stuart what it was she wanted to "say to the Court". 68 On 28 November 2018, Mr Campbell did discuss the issue of costs with Ms Stuart. His file note of the conversation indicates that he informed her that "there could be costs" and that if she lost, "ATLA may seek costs". Ms Stuart then told Mr Campbell that she did not wish to be liable for costs and did not wish him to take any further action. 69 On Thursday, 6 December 2018, Ms Stuart telephoned Mr Campbell again. On this occasion, she told him that she did wish to proceed with the application and the arrangements for the provision of a draft affidavit to Ms Stuart were discussed. 70 On the following day (Friday, 7 December 2018), Campbell Law sent to Ms Stuart's daughter the interlocutory application and affidavit together with instructions concerning the execution of both documents by Ms Stuart. The accompanying email from Campbell Law did not contain any advice to Ms Stuart concerning her prospects of success on the application or the liability to costs to which she was exposing herself. 71 Later on 7 December 2018, Mr Campbell spoke to Ms Stuart by telephone and made some minor changes to the draft affidavit. Mr Campbell deposed that he spoke to Ms Stuart on this occasion about the "possibility" of a costs order if she was unsuccessful with her application. His file note includes the entry "Lose - costs!! Discussed (ATLA)" and I am satisfied that this reflects in abbreviated form the discussion which had occurred. 72 On Sunday, 9 December 2018, Mr Campbell travelled to Port Augusta to meet Ms Stuart and to witness her making the affidavit. In his file note of that attendance, Mr Campbell recorded that he had explained the documents and the concept of "friend of the Court" to Ms Stuart. Mr Campbell deposed that he had also informed Ms Stuart on this occasion of the "potential" for a costs order to be made against her but accepted that he had not made a file note of his advice. Nevertheless, I accept Mr Campbell's evidence that he had done so. 73 In his cross-examination, Mr Campbell was referred to Ms Stuart's evidence that she wished to "get her story across" and that she had felt frustrated because the solicitors at Johnston Withers had not been listening to her. He said that he was unable to remember discussing with Ms Stuart alternative ways by which she could have raised her concerns with the first applicant or with the State. I am satisfied that the reason that Mr Campbell cannot remember those things is that he did not tell Ms Stuart of alternative means by which she could have her concerns addressed. 74 On Wednesday, 12 December 2018 at 5.42 pm, Mr Tonkin sent a long email to Mr Campbell. In that email, Mr Tonkin: (a) informed Mr Campbell that the State opposed his "very late application" on behalf of Ms Stuart; (b) told Mr Campbell that Ms Stuart's application was the same as that made by him on behalf of Ms Anderson on 12 October 2018 and reminded him that, as Ms Stuart was represented by Johnston Withers, it was only that firm which could be recognised in the proceedings as entitled to speak on her behalf; (c) indicated to Mr Campbell that there was no matter of fact or law on which Ms Stuart was able to assist the Court; (d) said that the very lateness of the application and the delay in bringing it were sufficient reasons for the application for leave to be heard as amicus curiae to be refused; (e) pointed out that Mr Harbord's affidavit of 25 October 2018 indicated that Ms Stuart was acting in breach of the conditions of her authority as applicant which she had acknowledged; and (f) forewarned Mr Campbell that the State would seek an order that he personally pay the costs of "this totally unnecessary application". 75 Mr Campbell said that he could not recall discussing the content of that email with Ms Stuart. He was unable to give any reason for his inability to recall whether he had or had not. 76 Mr Campbell accepted that he had pressed on with the application after receiving Mr Tonkin's email but said that he and the law clerks in his firm (one of whom is an admitted legal practitioner) had "spent a lot of time considering the status of amicus curiae". He said: We didn't do that lightly. We did a lot of research. We had a look at a - a number of cases and we also looked at the letter … from Mr Harbord which says the matter was still open. That's how we read that letter. And we thought that there was a reasonable application as amicus curiae and an arguable case. Now, we didn't do that lightly. We spent a lot of time as - with my colleagues assessing that and coming to the view that we should continue the - I came to that view, that I should continue. 77 I accept that Mr Campbell, his solicitor and his law clerks did, at least by 12 December 2018, have reference to the authorities and journal articles which he identified. I accept that they did so in order to seek to support the application by Ms Stuart to be heard as an amicus. The authorities and journal articles identified by Mr Campbell and his law clerks comprised: (a) an article published by Minter Ellison dated 8 February 2017 entitled "Full Federal Court decision in McGlade has significant repercussions for ILUAs"; (b) Butchulla People v State of Queensland [2006] FCA 1063; (c) Burragubba v State of Queensland [2016] FCA 984; (d) an article by The Honourable Sir Anthony Mason AC entitled "Interveners and Amici Curiae in the High Court: A comment", (1998) 20 Adel LR 173; (e) an article entitled "Commission Guidelines for the exercise of the amicus curiae function under the Australian Human Rights Commission Act", published by the Australian Human Rights Commission on September 18, 2009; (f) an article by Ernest Willhelm entitled "Amici Curiae and Access to Constitutional Justice in the High Court of Australia", (2010) 22(3) Bond Law Review 126; (g) an article by The Honourable Justice Michael Kirby AC entitled "Law at Century's End - A Millennial View from the High Court of Australia", (2001) MqLawJl 1; and (h) an article by Kenny J entitled "Interveners and Amici Curiae in the High Court", (1998) 20 Adel LR 159. 78 However, I consider that a solicitor acting reasonably would have recognised that those sources were of relatively little assistance in the circumstances of Ms Stuart's application. Plainly enough, the considerations bearing upon the High Court, as the ultimate court of appeal in Australia, allowing an amicus to be heard are different from those applying presently. But whatever be the position with respect to the approach of courts more generally in allowing an amicus curiae, account had to be taken by Mr Campbell of the fact that Ms Stuart, as one of the persons making up the "Applicant" in the Adnyamathanha proceedings, was already represented before the Court. The very lateness of the application and the other matters mentioned in my ex tempore reasons of 13 December 2018 also had to be considered. There is simply no indication that Mr Campbell gave any proper consideration to those matters, let alone that he advised Ms Stuart concerning them. 79 The course of events outlined above causes me to conclude as follows: (a) it was Mr Campbell who propounded to Ms Stuart the making of an application for her to be heard as amicus curiae. He did so because Campbell Law wished to continue the attempts it had been making on behalf of Ms Anderson to stop the consent determination proceeding. Mr Campbell propounded the application to Ms Stuart on the basis of a short telephone conversation between Ms Stuart and a law clerk in his firm, without having taken detailed instructions from her about her concerns and without giving any advice to her as to alternative means by which those concerns could be addressed, or as to the prospects of success of the application. Mr Campbell made an assumption, which turned out to be erroneous, as to what Ms Stuart wished to achieve; (b) at no time did Mr Campbell inform Ms Stuart (as, in my opinion, he should have) that her application to be heard as amicus curiae was bound to fail or, at the least, was highly likely to fail; (c) it does not appear that Mr Campbell even informed Ms Stuart of the Court's refusal to hear Ms Anderson as amicus curiae as recently as 12 October 2018, or of the reasons for that refusal. In my view, a solicitor of ordinary competence acting reasonably should have informed Ms Stuart of those matters as, by themselves, they indicated that the application which Mr Campbell was propounding she should make could have limited prospects of success; (d) although Mr Campbell did tell Ms Stuart that there was a risk of costs orders being made against her, at no time did he tell her that it was highly probable that the circumstances in which she made the application would provoke multiple applications for costs orders against her (that is, not just from "ATLA") and, further, that in the event that such applications were made, it was probable that costs orders would be made against her; (e) Mr Campbell did not provide Ms Stuart with a copy of Mr Tonkin's email of 12 December 2018, or otherwise inform her of its content, and seek her instructions as to whether to persist with the application. Instead, he made the decision to do so without reference to Ms Stuart; (f) Mr Campbell advised Ms Stuart to bring an application to be heard as amicus curiae even though such an application was ill-adapted to achieving Ms Stuart's objectives, namely, sitting down with the Ngadjuri and Wilyakali People to inform them of the stories and history which she knew with a view to safeguarding those matters for the future. In my opinion, and with due respect to Mr Campbell, no legal practitioner of ordinary competence could have sensibly thought that it was either necessary or appropriate for Ms Stuart to bring an application to be heard as amicus curiae to achieve that purpose. Such a practitioner would have advised Ms Stuart of alternative, and non-litigious, means by which those objectives could be achieved; and (g) even if it was the case that Ms Stuart wished to agitate issues concerning the ability of Mr Harbord to sign the consent determination on behalf of the Adnyamathanha People, the bringing of an application to be heard as amicus curiae was inappropriate for that purpose. In this respect, Mr Campbell appears to have laboured under a serious misapprehension as, in the submissions he made on Ms Stuart's behalf on 13 December 2018, he repeatedly contended that the only way in which Ms Stuart could have her grievance aired before the Court was by seeking to be heard as an amicus curiae and that she had had "no choice" but to bring the application. Such a belief on Mr Campbell's part was erroneous. There were alternative means by which Ms Stuart could have agitated that issue, had it been her real concern. It is apparent that Mr Campbell did not advise her of those alternatives. 80 I remind myself again of the caution with which the Court acts on applications of the present kind. In particular, I take into account that the Court should exercise care lest practitioners be dissuaded from acting for litigants with unpopular causes or in respect of which the prospects of success are uncertain or even unlikely. It is, as I have already said, a particularly important consideration that Mr Campbell was acting for Ms Stuart on a pro bono basis. However, I consider a passage in the reasons of Tracey J in Mijac Investments at [49] to be apposite presently: The achievement of the overarching purpose of the civil practice and procedure depends in part on a practitioner offering objective and considered advice to a client. This includes advice as to matters such as whether a proper basis in law exists for the making and pursuit of a particular application and the contents of any affidavits sworn in support of such an application. Without such advice, the just resolution of disputes according to law and as quickly and inexpensively as possible may well be hampered, if not frustrated. 81 For the reasons given, Mr Campbell not only failed to give objective and considered advice to Ms Stuart concerning an application to be heard as amicus, he positively propounded to her the bringing of such an application, on the basis that it was the application which Campbell Law wished to bring. He should have realised that such an application was bound to fail or, at the least, was highly likely to fail. Moreover, Mr Campbell propounded the bringing of the application when he had not sought instructions from Ms Stuart as to the matters which were really of concern to her. This is not a case of a practitioner acting for a party who, despite advice to the contrary, instructs the bringing of an application which is bound to fail. 82 For all these reasons, I consider that this is one of the exceptional cases in which the Court should order that a legal practitioner pay the costs incurred by the other parties. Mr Campbell should pay the costs on a party/party basis.
Summary 83 For the reasons given above, there will be orders that Ms Stuart is to pay the costs incurred by the Adnyamathanha People, the Ngadjuri Nation, and the Wilyakali People of and incidental to the interlocutory application which she filed on 11 December 2018, with those costs to be paid on a party/party basis. In addition, there will be an order that Mr Campbell pay the costs incurred by the Adnyamathanha People, the Ngadjuri Nation, the Wilyakali People and the State of South Australia of and incidental to the interlocutory application of 11 December 2018, with those costs to be paid on a party/party basis. 84 I will hear from the parties with respect to the costs of the hearing of the oral applications for costs. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
SCHEDULE OF PARTIES SAD 6001 of 1998 First Applicant Adnyamathanha No 1 Native Title Claim (SAD6001/1998) First Applicant: ANGELINA STUART First Applicant: BEVERLEY PATTERSON First Applicant: THATHY (GERALDINE) ANDERSON First Applicant: MARK MCKENZIE (SNR)
Second Applicant Ngadjuri Native Title Claim (SAD147/2010) Second Applicant: ELLA HARRADINE
Third Applicant Wilyakali No 2 Native Title Claim (SAD471/2015) Third Applicant: JANET CROWE Third Applicant: RICHARD EDGE Third Applicant: ELIZABETH HUNTER Third Applicant: BRIAN BATES Third Applicant: MAUREEN O'DONNELL
Respondents Respondent: COMMONWEALTH OF AUSTRALIA Respondent: DISTRICT COUNCIL OF ORROROO/CARRIETON Respondent: THE FLINDERS RANGES COUNCIL Respondent: AESTAS PTY LTD Respondent: ALPANA PTY LTD Respondent: FREDERICK SPENCER HOWE DOMAN Respondent: MARGARET CAMPBELL DOMAN Respondent: THOMAS ALASTAIR DOMAN Respondent: HGM PASTORAL PTY LTD Respondent: IAN C FERGUSON NOMINEES PTY LTD Respondent: JILL LARRITT Respondent: ELSPETH MARY DOMAN Respondent: ANDREW SPENCER DOMAN Respondent: CR & S PTY LTD Respondent: COMMODORE STATION PTY LTD Respondent: RICHARD BURY Respondent: DENIS F BEST Respondent: FRANCIS CAPOWIE PTY LTD Respondent: MOOLOOLOO PROPRIETORS PTY LTD Respondent: JAMES RANEMBE MORGAN Respondent: MUTOOROO PASTORAL COMPANY PTY LTD Respondent: ANNE NEED Respondent: NILPENA PARTNERS Respondent: BRENTON JOHN LUCKRAFT Respondent: ORATANA PTY Respondent: PARTACOONA PAST CO PTY LTD Respondent: QUINYAMBIE PASTORAL CO PTY LTD Respondent: GRAHAM ANDREW RAGLESS Respondent: OLARY INVESTMENTS PTY LTD Respondent: PAULINE ANN RAGLESS Respondent: RICHARD WILLIAM RAGLESS Respondent: RETEP PTY LTD Respondent: PHILLIP LEONARD SEARLE Respondent: SOUTH AUSTRALIAN FARMERS FEDERATION Respondent: GRISELDA SPRIGG Respondent: DOUGLAS P SPRIGG Respondent: MARGARET SPRIGG Respondent: TEETULPA PASTORAL CO PTY LTD Respondent: DAVID JOHN WARWICK Respondent: RICHARD MARCHANT WARWICK Respondent: WITCHELINA PTY LTD Respondent: WOODLENE PTY LTD Respondent: WINNIFRIED FARGHER Respondent: REX FARGHER Respondent: WILLIAM RESCHKE Respondent: CATHERINE DRIVER Respondent: DARREL FARGHER Respondent: WARREN FARGHER Respondent: JA SMITH Respondent: PO SMITH Respondent: DJ SMITH Respondent: JO SMITH Respondent: PA SMITH Respondent: JULIE RESCHKE Respondent: ROY DRIVER Respondent: EPIC ENERGY SOUTH AUSTRALIA PTY LTD Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC Respondent: TELSTRA CORPORATION LIMITED Respondent: SA POWER NETWORKS (FORMERLY KNOW AS ETSA UTILITIES) Respondent: DISTRICT COUNCIL OF PETERBOROUGH Respondent: AJ & PA MCBRIDE LIMITED Respondent: BOSS URANIUM PTY LTD Respondent: WILLIAM CRAWFORD Respondent: BILLEROO WEST PTY LTD Respondent: BUSH HERITAGE AUSTRALIA Respondent: BENAGERIE GOLD AND COPPER PTY LTD Respondent: YARRAMBA PASTORAL PTY LTD Respondent: KALKAROO PASTORAL CO PTY LTD
Coulthard
State of South Australia
(2012) 202 FCR 29
(2011) 199 FCR 23
(2012) 200 FCR 154
(1992) 174 CLR 178
(2015) 323 ALR 107
(1998) 156 ALR 169