Gomeroi People v Attorney General of New South Wales

1. There will be no order as to the costs of the application brought under s 66B of the Native Title Act 1993 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 7 December 2017, I gave judgment in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464. I will adopt the expressions and abbreviations used in that judgment. I ordered, pursuant to s 66B of the Native Title Act 1993 (Cth) (the Act) that the Replacement Applicant replace the Current Applicant in the application brought on behalf of the Gomeroi People for a determination of native title. 2 The Replacement Applicant now seeks an order that the Current Applicant pay their costs of the s 66B application. 3 Section 85A of the Act 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. 4 In Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163, the Full Court held 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 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. 5 The Replacement Applicant submits, firstly, that they were forced to institute the s 66B application and incur costs because of the Current Applicant's unreasonable conduct in failing to adhere to the expectations of the claim group expressed by the resolutions passed at the 2013 Authorisation Meeting. 6 If an applicant engages in misconduct or unreasonable conduct which leads to the applicant's replacement under s 66B of the Act, that will be relevant to consideration of the appropriate costs order. In this case, however, there is some controversy as to whether the Current Applicant's failure to call claim group meetings was at least partly due to the refusal of NTSCORP to assist in the facilitation of such meetings. That aspect of the evidence was not developed. I am not satisfied on the evidence available that there was relevant misconduct or unreasonable conduct which justifies an order for costs against the Current Applicants. 7 The Replacement Applicant submits, secondly, that unreasonable conduct by the Current Applicant resulted in unnecessary complexity and prolongation of the hearing. The Replacement Applicant relies upon: the raising of new allegations shortly before the hearing by the Current Applicant; the serving of written submissions in excess of the length permitted under orders made by the Court; the making of allegations of misconduct against Mr Chalmers that were not sustained; and the making of a number of technical and pedantic challenges to the conduct of the 2016 Authorisation Meeting. 8 I accept that the Current Applicant did raise a number of technical and pedantic points. However, it was not only the Current Applicant which contributed to the complexity and prolongation of the hearing. For example, Mr Chalmers failed to produce file notes of discussions with persons who had called for a s 66B meeting, and the Current Applicant was entitled to attack his credit, even though that attack was ultimately unsuccessful. The Replacement Applicant filed an affidavit of Ms Rotumah shortly before the hearing, without leave, containing substantial new evidence, which was rejected after lengthy argument. Later, the parties agreed that Ms Rotumah's evidence would be admitted. Both sides contributed to the complexity and length of the hearing. 9 In these circumstances, I am not prepared to depart from the starting point that each party should bear its own costs. 10 The view I have taken makes it unnecessary to consider the appropriateness of the order sought by the Replacement Applicant, which would have the effect that Jason Wilson, who is both a member of the Current Applicant and the Replacement Applicant, would have a costs order made against him and in his favour at the same time. 11 There will be no order as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.