Kimberley Land Council Aboriginal Corporation v Ngarrawanji Aboriginal Corporation RNTBC [2026] FCA 2

(1) a declaration against the Ngarrawanji Aboriginal Corporation RNTBC, the respondent, that the purported termination by the respondent of the contract of retainer with the applicant, insofar as that retainer related and relates to future act, native title and heritage matters (entrenched matters) was ineffective on the grounds that it exceeded the respondent's authority as agent for the Ngarrawanji native title holders and was contrary to the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth);

(2) a declaration that the retainer, insofar as it relates to entrenched matters, has not been terminated;

(3) a declaration that the respondent's purported engagement of Eagle & Partners to provide legal services to it in relation to the entrenched matters exceeded the respondent's authority as agent and was contrary to the Regulations, and hence was ineffective; and

(4) an injunction restraining the respondent from continuing to engage Eagle & Partners to provide legal services to it in relation to entrenched matters unless or until Ngarrawanji native title holders authorise such a course.

1. The matter was originally listed for a two-day trial on 8 and 9 December 2025.
2. On 22 November 2025, a meeting of common law holders in respect of the Ngarrawanji Determinations A and B was held at Halls Creek (Halls Creek meeting). The meeting was attended by 44 members of the respondent (including proxies). The minutes of that meeting, annexed to an affidavit of Robert Eagle filed on 26 November 2025, record that the following resolution was carried unanimously with one abstention:

The Ngarrawanji native title holders direct and authorize Ngarrawanji PBC to engage/change lawyers chosen by the board of Ngarrawanji PBC to act for the Ngarrwanji native title holders for future act, native title and heritage matters.

1. My chambers were then notified on 27 November 2025 that the trial was no longer required as the proceeding had been overtaken by events. As a consequence, while the applicant makes no concession as to the validity of the outcome of the Halls Creek meeting, it seeks leave to discontinue the proceedings with no orders as to costs. The respondent does not oppose discontinuance of the proceedings but seeks orders that the applicant pay its costs.
2. As the applicant wishes to discontinue with no order as to costs, leave is required under r 26.12(7) of the Federal Court Rules 2011 (Cth). Rule 26.12(7) states that:

Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.

1. As is common ground between the parties, the starting point for a consideration of the question of costs is s 85A of the Native Title Act 1993 (Cth) which provides that:

(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

(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.

1. The relevance of s 85A(1) is not limited to proceedings that concern matters arising under the Native Title Act. The Court may also take into account the legislative intention underlying s 85A(1) and "follow the spirit" of that provision even in circumstances where a proceeding is not instituted under the Native Title Act and s 85A(1) is not, therefore, directly applicable: Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [9], [12]-[13] (the Court); Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490 at [185], [187] (Horan J).
2. While s 85A(1) of the Native Title Act "removes the expectation that costs will follow the event", the Court retains its discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth): Cheedy at [9]; Yanunijarra at [185]. Further, the "unreasonable conduct" of the parties is not a jurisdictional fact which pre-conditions the exercise of discretion: ibid.
3. The respondent's submissions in support of its contention that the applicant should pay its costs can be summarised as follows:

(1) there is no agreement between the parties as to whether the respondent is now free to engage other solicitors given the applicant does not admit or accept the validity of the Halls Creek meeting, and therefore that the issues between the parties have been resolved;

(2) while the applicant repeatedly offered to assist the respondent in holding a meeting of common law holders, it ultimately did not do so, save in respect of the mailing of notices; and

(3) the dispute arises from the manner in which the applicant prepared key documents, including how a direction from the Ngarrawanji native title holders was recorded in meeting minutes, and a statement in a retainer agreement allowing for termination at any time by notice in writing.

1. In my view, the respondent's submissions should be rejected. The applicant is plainly correct in saying that the respondent has not shown a basis for departing from the general rule in s 85A(1) of the Native Title Act for the following reasons.
2. First, in seeking to discontinue the proceeding, the applicant has made clear its intention not to seek relief against the respondent or Eagle & Partners. The applicant further submits that it "will not be representing to any person that it continues to act for" the respondent, it is content for its retainer to be terminated, and it "has no present intention of ... bringing a fresh proceeding about the [Halls Creek] meeting". Nor is it unreasonable for a party to discontinue a proceeding because the facts to which it relates have been overtaken by events.
3. Secondly, as the respondent accepts, the applicant offered to assist in holding a meeting of common law holders on six occasions between March 2024 and March 2025, before commencing proceedings in May 2025. All of these offers were ignored by the respondent. Further and in any event, even if the only assistance given by the applicant was to mail out notices for the Halls Creek meeting on 22 November 2025, on no view (as the applicant submits) could that constitute the applicant, "by any unreasonable act or omission, [causing respondent] to incur costs in connection with the institution or conduct of the proceeding". Rather, I agree with the applicant that it was the respondent's lengthy refusal to hold a meeting that caused the legal costs of this proceeding to be incurred, rather than any conduct by the applicant.
4. Thirdly, the respondent's submissions about the manner in which the applicant prepared the documents the subject of the substantive dispute go to the merits of the underlying dispute. As I indicated at the case management hearing on 28 November 2025 and in a notation on the orders made on that day, it would be inappropriate to attempt to litigate the merits of the substantive dispute through the question of costs in circumstances where the parties are agreed that the matter should be discontinued because the substantive issue has been superceded by events. In any event, the applicant had explained in correspondence dated 27 March 2024 that the respondent was bound by a direction from the Ngarrawanji native title holders. Consequently, if the respondent was in any doubt as to the direction's validity, it was open to the respondent to hold a meeting of native title holders to resolve any doubt, as the respondent ultimately did after proceedings were commenced.
5. For these reasons, I agree with the applicant that there is nothing unreasonable in its commencement, maintenance or discontinuance of the proceeding. It follows that the appropriate order is that the applicant be granted leave to discontinue the proceeding on the basis that the parties bear their own costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.