Malone on behalf of the Western Kangoulu People v State of Queensland

1. In this proceeding, the applicant seeks a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act) in respect of an area of land surrounding the township of Emerald in the western part of the Central Highlands in Queensland. The claim was originally filed on 9 May 2013, and is made on behalf of the Western Kangoulu people. The respondents to the proceeding include the State of Queensland, the Commonwealth of Australia and a large number of other persons and corporations that hold property interests in the claim area.
2. By interlocutory application dated 2 December 2024, Michael Paul Huet sought an order to be joined as a respondent to the proceeding pursuant to ss 84(5) and 84(5A) of the Native Title Act. That application was heard by the Court on 31 January 2025. On the same day, I made orders dismissing Mr Huet's interlocutory application and published reasons for those orders in Malone on behalf of the Western Kangoulu People v State of Queensland (No 4) [2025] FCA 36 (Malone No 4). I concluded that in circumstances where:

(a) a trial of the separate questions had already occurred (in August, September and November 2022);

(b) it could be inferred that Mr Huet sought to be joined as a respondent to the proceeding for the purpose of opposing the applicant's claim; and

(c) the Court will shortly deliver an answer to the separate questions,

it would be contrary to the interests of justice to allow Mr Huet to be joined to the proceeding. I also found that Mr Huet's explanation for his failure to make such an application at an earlier point in time was inadequate.

1. Orders were also made allowing the applicant to file submissions on the question whether an order should be made that Mr Huet pay the costs incurred by the applicant in opposing the interlocutory application, and for Mr Huet to file a submission in response. The orders stipulated that the question of costs would be determined on the papers unless the applicant or Mr Huet requested a further oral hearing on the question of costs in their written submissions.
2. The applicant filed its submissions on 14 February 2025, together with a supporting affidavit affirmed on the same date by David Knobel of P&E Law, the solicitors for the applicant. Mr Huet filed his responsive submissions on 28 February 2025, together with a supporting affidavit affirmed on the same date by Sharon Giardina of Osborne Butler Lawyers, the solicitors for Mr Huet.
3. No objection has been taken by either party to the affidavits that were filed, and neither party sought a further oral hearing on the question of costs. I therefore take the affidavits as read on the question of costs, and the question of costs has been determined on the papers.
4. For the reasons that follow, I consider that the appropriate order is that Mr Huet pay the applicant's costs of and incidental to the interlocutory application filed on 2 December 2024, capped at an amount of $5,000. These reasons should be read together with Malone No 4.

Evidence and submissions relied on by the applicant

1. By their written submissions, the applicant sought an order for costs on an indemnity basis against Mr Huet and his solicitor, Ms Giardina.
2. Mr Knobel deposed to the correspondence he sent to Mr Huet's solicitor on 5 December 2024, encouraging Mr Huet to withdraw the joinder application. The letter stated that if the joinder application proceeded and was unsuccessful, the applicant would seek costs against Mr Huet and his solicitors. The letter also outlined the history of the proceeding, including the circumstance that the joinder application was made some 2 years after the conclusion of the hearing of the separate questions.
3. The applicant submitted that it is inconceivable that Mr Huet and his solicitor did not apprehend that the Court would not permit him to be joined as a respondent to oppose the applicant's claim when a trial of substantive issues in the proceeding had already occurred, noting that a joinder on this basis could only cause extraordinary prejudice to the applicant and the State. The applicant argued that Mr Huet and his solicitor brought the application without any proper consideration of the prospects of success and, for that reason, their conduct was unreasonable.
4. The applicant further submitted that the unreasonableness of the joinder application is compounded by the following circumstances: Mr Huet adduced little if any probative evidence of holding traditional rights and interests in the Western Kangoulu claim area; Mr Huet failed to provide any adequate explanation for his delay in seeking to be joined, despite being aware of the proceeding since at least 2019; and despite being notified by the applicant on 5 December 2024 that a hearing of the separate questions had already occurred, Mr Huet maintained the joinder application.

1. By his written submissions, Mr Huet submitted that the circumstances of the present case did not warrant a departure from the general principle stated in s 85A(1) of the Native Title Act, that each party bear their own costs.
2. As is recorded in Malone No 4, Ms Huet's interlocutory application was supported by an affidavit of Raymond Martin, whom Mr Huet had approached to obtain an anthropological report. Ms Giardina deposed that, during the hearing of the joinder application, the credibility and specialised knowledge of Mr Martin was a focal point. Ms Giardina further deposed that, at the time of the hearing it was unknown what further qualifications or certifications were held by Mr Martin beyond what was included in his curriculum vitae in evidence (which curriculum vitae, as I observed in Malone No 4 (at [44]), indicated that Mr Martin had not undertaken any higher level or specialised studies in anthropology). Ms Giardina deposed that Mr Martin is currently enrolled in a Master of Research in Anthropology at the University of Southern Queensland which is in the process of being converted to a Doctor of Philosophy degree.
3. Mr Huet submitted that neither he nor his solicitor acted in an unreasonable manner. To a large extent, Mr Huet's submissions were focussed on establishing that the manner in which the joinder application was conducted was reasonable, rather than the question whether there was a reasonable basis to bring the joinder application. Mr Huet submitted that orders were made for the preparation and hearing of the application in a timely and efficient manner and that Mr Huet complied with those orders. Mr Huet submitted that the application was conducted in accordance with the overarching purposes contained in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and that the dispute was disposed of as quickly, inexpensively and efficiently as possible.
4. Mr Huet further submitted that the basis of his joinder application was a defensive one which asserted his identity as a Gaangulu individual with rights and interests within the Western Kangoulu claim area, and that he brought the application to preserve his native title rights from dilution and erosion. In his submissions, Mr Huet reiterated matters that were raised on the joinder application and which were considered, and rejected, in Malone No 4.

1. Section 43 of the FCA Act gives the court a broad discretion in awarding costs. The discretion must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation: Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 (Sangare) at [24]. While not a rigid rule, usually the discretion to award costs is exercised in favour of a successful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (Oshlack) at [35] (Gaudron and Gummow JJ), [66]-[67] (McHugh J) and [134] (Kirby J); Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Sangare at [25]. The basis for this "usual order as to costs" is not to penalise a losing party, but to compensate a successful party against the costs incurred by reason of the legal proceeding: Oshlack at [67] (McHugh J).
2. The Court also has express powers under s 43(3) of the FCA Act to order that costs be paid in a specified sum or on an indemnity basis and to order a party's lawyer to bear the costs personally. The Court undoubtedly has power to make an order specifying the maximum costs that may be recovered.
3. Section 85A of the Native Title Act, which is applicable to the present proceeding, provides as follows:

(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. In Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; 199 FCR 23, the Full Court explained the relationship between s 43 of the FCA Act and s 85A of the NTA in the following terms (at [9]):

It is now well established that in proceedings to which s 85A applies:

(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 v South Australia [2007] FCA 1479 at [54].

1. Conduct within the scope of s 85A(2) is that which is objectively unreasonable in the circumstances of the particular case: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2020] FCA 76 at [40].
2. As stated in Malone No 4 (at [50]), it is difficult to conceive of any circumstances in which the Court would permit a person to be joined as a respondent to a native title proceeding to oppose the applicant's claim when a trial of substantive issues in the proceeding had already occurred. The prejudice to the participants in the trial would be extraordinary. The evidence shows that Mr Huet and his solicitor were made aware of those matters shortly after commencing the joinder application. Despite that, they persisted. I also found in Malone No 4 that Mr Huet's explanation for the delay in bringing his application lacked any merit and he adduced little if any probative evidence of holding traditional rights and interests in the Western Kangoulu claim area (at [54], [55], [67] and [68]).
3. Having regard to those circumstances, the applicant's submission that the conduct of Mr Huet in making and maintaining the joinder application was objectively unreasonable must be accepted. However, I do not consider that it can be inferred that, in bringing the application, Mr Huet had the ulterior purpose of seeking to stop the hearing of the separate questions from proceeding to judgment. A fair reading of the evidence indicates that Mr Huet was seeking to advance a claim to holding rights and interests within the Western Kangoulu claim area.
4. I am satisfied that, by bringing the joinder application, Mr Huet has unreasonably caused the applicant to incur costs. In the circumstances of this case, it would be unjust to require the applicant to bear its own legal costs of the joinder application. An order for costs should be made against Mr Huet.
5. The question whether indemnity costs should be ordered is finely balanced. Such an order may be made where it appears that the application was commenced or continued in circumstances where the applicant, properly advised, should have known that there was no prospect of success: Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19]. The present case satisfies that condition. Nevertheless, I have determined that such an order should not be made in the present case having regard to its subject matter. I am not willing to find that Mr Huet brought the joinder application for an ulterior purpose. I consider that the stronger inference is that, in circumstances where the neighbouring Gaangalu Nation People native title claim (QUD33/2019) was unsuccessful, Mr Huet sought to protect his claimed native title rights and interests as a Gaangulu person by being joined to the present proceeding. While the joinder application was misconceived and doomed to fail, I do not consider that the interests of justice would be served by an order for indemnity costs.
6. As Mr Huet submitted, the joinder application was conducted relatively efficiently. The costs incurred by the applicant in opposing the joinder application should not be large. In order to avoid the costs that would be incurred through a taxation process, I propose to award costs capped at $5,000. I consider that that amount reasonably reflects the quantum of costs that would be recoverable by the applicant on a party and party basis. In imposing a cap on the recoverable costs, my expectation is that there will be no necessity for the applicant's costs to be taxed. Rather, the applicant will provide Mr Huet with a statement of the costs incurred by the applicant on the joinder application, verified if necessary, such that Mr Huet can satisfy himself that the applicant's taxed costs would be at or above the cap of $5,000. Given the amounts involved, incurring further costs on a taxation process would be wasteful and burdensome to both parties.
7. The applicant also sought an order that costs be paid by Mr Huet's solicitor, presumably on a joint and several basis. The power to award costs against a lawyer personally is exercised sparingly and with great caution. As stated by the Full Court in Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 at [43]- [44], there must be unreasonable conduct on the part of the solicitor, which must be more than acting on behalf of a client that has little or no prospects of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success. I cannot be satisfied on the evidence before me that the conduct of Ms Giardina, in bringing the joinder application on behalf of Mr Huet, involved something akin to an abuse of process. It is certainly the case that Ms Giardina should have known that the joinder application had no prospect of success. However, I do not consider that that is a sufficient basis to make a costs order in favour of the applicant against Ms Giardina personally.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.