Mann on behalf of the Bigambul People #2 v State of Queensland

submissions 9 All parties were legally represented in this matter. 10 In summary, the Gamilaraay Applicant submitted the following: The case was distinguishable from circumstances where a Native Title claimant makes an application for the first time in what may be considered a daunting jurisdiction, or where the lack of authorisation may be cured either by addressing the particular defect in authorisation or seeking authorisation afresh. In this case a subset of Bigambul people sought to authorise a claim on its own behalf and with the intention of excluding other Bigambul Native Title holders who might also identify as Gamilaraay. In doing so, the subset failed to appropriately notify other Bigambul People and accordingly limited their opportunity to participate in any authorisation meeting. The defect in authorisation was not curable so as to leave room for the operation of s 84D of the Native Title Act. The Bigambul #2 Claim was brought at a late stage of the Gamilaraay claim, which was scheduled for consent determination after 5 years of negotiations. The Bigambul #2 Claim caused the scheduled Gamilaraay consent determination to be vacated. The conduct of the Bigambul #2 Applicant revealed that the Bigambul #2 Claim was filed for the ulterior motive of seeking joinder of three Bigambul apical ancestors to the Gamilaraay claim group, rather than for the purpose of seeking a determination of Native Title to the exclusion of Gamilaraay people, and was an abuse of process particularly where there was an existing joinder application. The conduct of the Bigambul #2 Applicant was unreasonable within the meaning of s 85A of the Native Title Act. The costs of the interlocutory application filed 29 May 2023 by the Bigambul #2 Applicant were also sought, as the interlocutory application was brought outside of the appeal period and put the Gamilaraay Applicant to unnecessary costs. That the Gamilaraay Applicant was represented by a Native Title Representative Body is no impediment to an award of costs: Far West Coast per Mansfield J at [14] - [26]. 11 In summary, the Bigambul #2 Applicant submitted as follows: There should be no departure from the usual position of costs in Native Title proceedings, that is each party bearings its own costs under s 85A(1) of the Native Title Act. As explained in State of Western Australia v Banjima People [2016] FCAFC 46, the discretion of the Court to depart from the usual course must not be exercised "arbitrarily, capriciously or so as to frustrate the legislative intent". The Gamilaraay applicant sought costs on the basis that the filing of the Bigambul #2 Claim on 18 August 2022 was defective because it was not properly authorised. The Gamilaraay Applicant was not joined as a party to the Bigambul #2 Claim until 15 November 2022. A defective claim is not a basis for awarding costs against an applicant for continuing to prosecute the claim, where at the time of filing the relevant respondents were not parties, and although ultimately unsuccessful the applicant had an arguable basis for submitting that it should be allowed to continue with the claim: Saunders on behalf of the Bigambul People v State of Queensland (No 3) [2021] FCA 444. The Native Title Act is not to be construed in such a way to discourage Native Title Holders from utilising the provisions of the Native Title Act to resolve their claims. Novelty of a point argued concerning publication to a subgroup was not a reason to depart from the usual requirement in s 85A of the Native Title Act that each party bears its own costs. Counsel for the Gamilaraay People spent much more time submitting on defects in authorisation that he did on abuse of process. It was open to the Court to consider that the Bigambul #2 Applicant proceeded reasonably in not further postponing the meeting not withstanding that the Court later found that the authorisation of the claim was deficient due to lack of notice. The solicitors for the Bigambul people first had access to the documents filed in the Gamilaraay claim when it became a party for the purpose of the joinder application on 12 August 2022. Prior to then, limited documents were able to be viewed by the Bigambul people and the first of those to refer to a consent determination was the Orders of 16 May 2022. The suggestion that the solicitor for the Bigambul #2 Applicant knew about the advanced stage of the Gamilaraay claim from attendance at a call over on 3 September 2021 was in direct contradiction of Mr Colin Hardie's affidavit filed 25 January 2023. The relevant time for determining the intention of the Bigambul #2 Applicant was not the time when the offer of compromise was made but at the time the claim was authorised. The authorisation of meeting was held 24 April 2022. The first time the Court orders mention that the Gamilaraay claim was moving towards a consent determination was 16 May 2022. This was three weeks after the authorisation meeting was held. At the time the claim was authorised there was no intention to proceed with a joint claim or use the claim as a bargaining chip against the Gamilaraay Applicant. The actions of the Bigambul #2 Applicant in relation to the 29 May 2023 interlocutory application could not be characterised as unreasonable as: • The matter was dealt with as part of a case management hearing and without the need to prepare full legal argument; • The Court initially expressed the view that it was prepared to make the orders sought in the interlocutory application but ultimately the Court decided that it lacked power in the absence of consent by the parties. In the event, while dismissing the application, the Court made orders that allowed the Bigambul #2 Applicant to obtain Counsel's opinion as to whether there were prospects for an appeal. This was consistent with the purpose sought in bringing the Interlocutory Application; and • No additional costs were incurred by the Gamiliaraay Applicant and no time was wasted by the Court. There is no evidence before the Court that the Gamilaraay Applicant incurred or will be required to pay any of the costs of this litigation. It would not be in the interests of justice or in accordance with the legislative intention for the Court to make an order for the Bigambul #2 Applicant to pay costs to another aboriginal group (where that group is not out pocket), particularly where the order is at large without any quantification of what those costs might be and in circumstances where further costs are likely to be incurred during the process of taxation. 12 The Gamilaraay Applicant submitted in summary in reply: The Court's discretion concerning costs was to be exercised on a case by case basis, and was not informed by the findings of other cases. It would "frustrate the legislative intent" to entertain claims where authorisation was plainly defective. No "novel legal or administrative problems" were raised by filing an unauthorised claim, and the use of s 84D to deal with the defects in authorisation was not novel. The time devoted by counsel to the authorisation point rather than the abuse of process point does not show that the former must be novel. The Bigambul #2 Applicant's solicitor was put on notice of the intended commencement of the Gamilaraay proceeding more than five years ago and further could have searched the register of Native Title claims. The Bigambul #2 Applicant made submissions that did not bear upon the findings of the Bigambul #2 Claim and therefore have no bearing on the question of costs. Neither the procedure for, nor applications for, extensions of time in which to seek leave to appeal are novel.

Legal Principles 13 Section 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) grants the Court jurisdiction to award costs. The award of costs is at the discretion of the Court: Federal Court Act, s 43(2). Ordinarily, costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72. The position in respect of proceedings in Native Title matters is however modified by s 85A of the Native Title Act, which provides: (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. 14 The starting point for consideration of costs in Native Title proceedings is that each party bears their own costs, unless the Court considers it appropriate to order otherwise. The power of the Court to award costs pursuant to s 85A(2) is similarly discretionary, referable to the satisfaction of the Court 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. 15 Justice Lee in Ward v Western Australia (1999) 93 FCR 305 explained that s 85A(2) did not impose a limit or threshold on the exercise of discretion by the Court: 31 Section 85A of the Act does not limit the discretion of the Court to order costs in the manner set out in s 117 of the Family Act or ss 347 and 170CS of the Workplace Relations Act. 32 As drawn, s 85A acknowledges that the Court has an overriding discretion in respect of costs. In one sense, it does no more than state the obvious that in the absence of any order by the Court each party must bear its own costs. Where the discretion in the Court to award costs is at large there may be an anticipation, or expectation, by a successful party in litigation that costs will follow that event but it is not an entitlement and a court, acting judicially, may refuse to make such an order. 33 Being inserted as a new provision in the Act, the construction of s 85A should, if an alternative meaning is available, apply a meaning which permits the provision to carry out a function. Such a meaning which provides a function for s 85A is to remove any ground for anticipation or expectation that unless cause is shown for some other order to be made costs will usually follow the event. 34 The discretion of the Court to award costs is not confined. The matters to be taken into consideration in making such an order are left to the Court as a discretion to be exercised judicially. But the starting point will be that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs. 35 It is not a requirement of s 85A that a threshold condition be met before the Court is empowered to order the payment of cost: see Oshlack at 81 per Gaudron and Gummow JJ. The Court is not required to be satisfied that circumstances exist that "justified" an order for costs before such an order may be made. It follows even more plainly that the exercise of the discretion is not conditioned upon a finding of fact, or formation of an opinion, as to the occurrence of unreasonable conduct in the litigation, or existence of special reasons or particular circumstances for the making of such an order. What the Court will keep in mind is that there is to be no expectation that costs follow the event. 36 Section 85A(2) makes it clear that the Court may order any party, including a successful party, to pay costs incurred by others by reason of unreasonable conduct by that party in the litigation. Such a statement does not add to the discretion already possessed by the Court but reflects the public interest in such conduct being subjected to the penalty of an appropriate costs order. The subsection puts beyond doubt the extent of the Court's discretion: see Oshlack at 87-88 per Gaudron and Gummow JJ. 37 Section 85A(2), in terms, does not control the operation of s 85A(1) and, in particular, does not limit the discretion available to the Court under s 85A(1).

Standing to claim costs 16 The Bigambul #2 Applicant submitted that the Gamilaraay Applicant was not entitled to an award of costs on the basis that: it was represented by Queensland South Native Title Services (QSNTS), which is a representative body under Part 11 of the Native Title Act; and there was no evidence that the Gamilaraay Applicant would be required to pay QSNTS any costs of the proceeding. 17 Similar arguments were canvassed before Mansfield J in Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635, and rejected. His Honour found that Native Title representative bodies incur costs in conducting the matter on behalf of the applicant for the claim group, and as such a costs order may be warranted. In particular his Honour said: [17] Although, the applicant did not personally incur legal costs by engaging SANTS, there is no doubt that SANTS incurred legal costs in defending Mr Miller's interlocutory application. [18] In my view, this situation is analogous to the relationship between the Crown and its legal officers. In Inglis v Moore (No 2) (1979) 46 FLR 470, St John and Brennan JJ found at 472: [A] successful party who is represented by the Crown Solicitor in litigation in which the Crown has an interest is not disentitled to costs from an unsuccessful party merely because he is not under a personal liability to the Crown solicitor for costs. … [T]he Crown, by virtue of its interest in the subject-matter of the litigation was entitled to make its solicitor available to act for the party on the record, and that as the Crown incurred the expense of his employment the party he represented was entitled to recover the costs awarded to him. [19] The position is well-established. In The Begarin (1916) 12 Tas LR 26 at 26-27, Nicholls CJ found that the Crown does not have its cases conducted free of cost, but instead pays salaries which must be taken to be merely the mode in which it remunerates its legal officers who conduct its cases for it. This is not dissimilar to salaries paid to salaried lawyers from legal aid institutions and public bodies and authorities. [20] Going back further, Lord Stormonth Darling observed in Lord Advocate v Stewart (1899) 36 Sc LR 945 at 945: So long as fees proposed to be charged are reasonable in amount … there is no reason why he should escape part of the consequences of his unrighteous litigation merely because of this arrangement between the Crown and its officers. In one sense, no doubt, he does not cause any additional expense to the Crown; because the salaries would have to be paid whether he litigated or not. But it is to be presumed that the salaries have been calculated on the footing of there being an average amount of litigation, and each salary therefore may be said to contain the equivalent of each separate fee; if so, there is no injustice in the Crown being recouped to that extent by the losing party. [21] The established jurisprudence is that a party who is represented by the Crown Solicitor or Australian Government Solicitor notionally incurs cost to his solicitor although he will not have to pay any money to the solicitor: see Ditton v Gallagher (1992) 110 ACTR 12 at 15 per Gallop J. [22] I recognise that the present relationship is a little different in that it is between a Native Title Representative Body and a claim group. However, in my view there is a close analogy to the cases referred to above. Firstly, where a Native Title Representative Body has provided legal assistance in relation to the conduct of a native title determination application, costs will have been incurred by its legal officers on behalf of the applicant for the claim group and even though the applicant for the claim group may not expect to be liable to pay for them, the relationship is such that underlying it is the understanding that such a liability may exist. The Representative Body is providing legal services, and fulfilling its statutory mandate, as contemplated by the NT Act on behalf of that applicant. In addition, the Representative Body in turn is funded to provide those services in a way which expressly provides for the application of those funds in that way. It may be added that the reverse to the present position may also occur. A costs order under s 43 of the FCA Act, having regard to s 87A of the NT Act, may be made in appropriate circumstances against an applicant, and those costs would then in the normal course be paid through the Representative Body provided the applicant was represented through it. [23] Legal aid institutions and Native Title Representative Bodies are similar in nature. They derive most of their funding from the government and do not directly charge legal costs to those whom they represent. Native title Representative Bodies like SANTS serve a more special function in that, inter alia, they provide assistance with respect to native title applications: Division 3 of Pt 11 the NT Act. [24] The argument that SANTS cannot seek costs orders points out that the NT Act does not contain detailed statutory guidance like those in legal aid regimes. In my view, the lack of a specific costs regime in the NT Act such as appears in the legislation referred to in [16] above does not make their respective positions different in principle so as to preclude Native Title Representative Bodies from seeking costs. Section 85 of the NT Act confers wide discretion on the court to make cost orders. That power exists and must be understood in the context of the NT Act. It contemplates that bodies such as SANTS may have an employed legal team which conducts on behalf of an applicant a claim such as the present, and alternatively, that it may fund an independent lawyer or lawyers to provide the legal services to conduct such a claim. It would be difficult to suggest that the independent lawyer, funded by SANTS, should not be able to seek costs from another party in appropriate circumstances. That is what s 85A contemplates. That should equally apply where the SANTS legal team does that work. The roles and functions of Native Title Representative Bodies are set out in great detail in Pt 11 of the NT Act. It is not uncommon for Native Title Representative Bodies such as SANTS to rely on the Commonwealth for funding. Counsel for Mr Miller recognised that expense incurred in litigation in native title matters does reduce SANTS' capacity to provide other litigation assistance to other claimants. To preclude those bodies from seeking costs orders through an applicant, including disbursements such as those to counsel, when appropriate could work obvious injustice in a real and practical sense where SANTS is either funding the legal services for the applicant or is providing its own legal resources to the applicant. [25] If Native Title Representative Bodies are unable to seek cost orders, it will always be the position that there will be no cost orders when the party represented by a Native Title Representative Body is successful, however any respondent party may conduct its case. On the other hand, the argument of Mr Miller would mean that if a party represented by a Native Title Representative Body is unsuccessful, that party is left open to an adverse costs order. That is clearly not what s 85A contemplates. Indeed, if Mr Miller's contention is correct, it would mean that this court's discretion to make costs orders is substantially restricted. That would be inconsistent with the Full Court in Cheedy. [26] In my view, the applicant is entitled to seek cost orders in the terms sought. 18 I respectfully endorse the comments of Mansfield J in Far West Coast, and consider they are applicable in the present case. It follows that I reject the submission of the Bigambul #2 Applicant that the Gamilaraay Applicant was not entitled to seek costs on the basis it was represented by QSNTS.

Application of s 85A Native Title Act 19 The next question is whether the Bigambul #2 Applicant, by any unreasonable act or omission, caused the Gamilaraay Applicant to incur costs in connection with the institution or conduct of the Bigambul #2 Claim. 20 In the Substantive Judgment I found that the Bigambul #2 Claim should be struck out pursuant to s 84C of the Native Title Act. I further found that the Bigambul #2 Claim was an abuse of process in circumstances where the delay of the Bigambul #2 Applicant in commencing the Bigambul #2 Claim constituted an abuse of process for the purposes of r 26.01(1)(d) of the Federal Court Rules. 21 In Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 Mortimer J (as her Honour then was) said: 239. If the Mullewa Wadjari claim group collectively decide not to honour the mediation outcomes, my present view is that there is a proper basis for the Court to consider whether there should be compensation (by way of costs orders) for the tremendous amount of legal time and resources the Wajarri Yamatji and Nanda parties have expended, in reliance on the actions of the Mullewa Wadjari applicant, but which would have been thrown away. Whether or not the State seeks to be included in any compensation for costs should be addressed. It might be perceived as unjust, having found an abuse of process, for the Court not to order some compensation by way of legal costs. There could be a question whether, to ensure responsibility is taken by those who are on the evidence responsible for the abuse of process, costs orders should be against those people present at each of the mediations, and/or each of the members of the Mullewa Wadjari applicant who are responsible for instructions given to their lawyers. It is these individuals who bear the responsibility for not being candid over a period of three years with their neighbours, and/or for treating the Court's mediation process as something they could simply disregard. To be clear, there is no suggestion YMAC should incur any liability for those costs. (emphasis added) 22 Similarly in this case, in circumstances where the conduct of the Bigambul #2 Applicant has constituted an abuse of process, it follows that that conduct can logically be viewed as unreasonable within the meaning of s 85A of the Native Title Act such that costs can properly be awarded against them. In my view, that conduct was unreasonable, being in the nature of: The extreme delay in commencing the Bigambul #2 Claim; The substantial defects in the authorisation of the Bigambul #2 Claim as outlined in the Substantive Judgment; The absence of any satisfactory explanation by the Bigambul #2 Applicant for that delay; The inference which can be drawn that the Bigambul #2 Claim was commenced in order to require the Gamilaraay Applicant to include additional descent lines in that claim, rather than being a genuine claim to the overlapping area; and The serious prejudice caused to the Gamilaraay Applicant and the progression of the Gamilaraay consent determination by the conduct of the Bigambul #2 Applicant. 23 The arguments of the Bigambul #2 Applicant against an award of costs can be summarised as: The length of submissions made by Counsel for the Gamilaraay People concerning the defects in the Bigambul #2 authorisation process, and principles relevant to abuse of process, at the hearing of the joinder and strike out applications; The novel legal and administrative issues arising in respect of subgroups; The lack of knowledge of the Bigambul #2 Applicant concerning the existence of the Gamilaraay Native Title Claim; The delay of the Bigambul #2 Claim was explicable by reference to that lack of knowledge; and The lack of ulterior motive in the Bigambul #2 Applicant concerning the timing of the filing of their Native Title Application. 24 In my view these arguments entirely lack merit. In particular: In respect of issues of knowledge, delay and motive, the Bigambul #2 Applicant is improperly reagitating issues already determined in the Substantive Judgment. In respect of the length of submissions made by Counsel for the Gamilaraay People, it was entirely reasonable for Counsel to thoroughly address relevant issues in respect of the Gamilaraay People's application for strike out of the Bigambul #2 Claim, noting the very serious nature and consequences of an application of that type. As I found in the Substantive Judgment, the Bigambul #2 Applicant appeared to represent a subset of the Bigambul People, being Bigambul persons who "principally identify as a Bigambul person even though [they] may be also be eligible to be a member of another aboriginal native title group" as set out in Schedule 3 of the Rule Book of the Bigambul Native Title Aboriginal Corporation (BNTAC). At [166] of the Substantive Judgment I found that the evidence was overwhelming that the limitation on membership of BNTAC in its Rules did not reflect the description of Bigambul People, and in fact, that that membership description represented only a subset of the Bigambul People. I further found that to the extent that the notification of the meeting was limited to members of BNTAC, it did not give all Bigambul People every reasonable opportunity to participate in the decision making process. This issue did not in my view raise "novel legal or administrative problems" in respect of the Bigambul #2 Claim. 25 The Bigambul #2 Applicant should be liable for the costs of the Gamilaraay Applicant of and incidental to the interlocutory application filed on 4 November 2022.

Interlocutory Application filed 29 May 2023 26 As I explained earlier in this judgment, by interlocutory application filed 29 May 2023 the Bigambul #2 Applicant sought an extension of time in which to seek leave to appeal the Substantive Judgment. This interlocutory application was dismissed on 30 May 2023. 27 The issue of extension of time in which the Bigambul #2 Applicant could seek leave to appeal was further canvassed in a Court Report filed by the solicitor for the Bigambul #2 Applicant on 6 June 2023. No application for leave to appeal the Substantive Judgment was ultimately brought. 28 The Gamilaraay Applicant has sought costs in relation to this interlocutory application on the basis that it was brought under the incorrect rule and after the appeal period, thus needing the Court to retrospectively extend the appeal period. It further submitted that as the interlocutory application was in relation to a speculative appeal that was not ultimately commenced, it put the Gamilaraay Applicant to unnecessary costs. 29 It was the Bigambul #2 Applicant's submission that the matter was dealt with as part of an already scheduled case management hearing, no additional costs were incurred, and the Bigambul #2 Applicant's conduct could not be characterised as unreasonable. 30 Events relevant to the interlocutory application filed on 29 May 2023 occurred over a few days in the context of case management hearings. No arguments of substance were put by any party. In my view, while there was apparently a procedural error in the approach of the lawyers for the Bigambul #2 Applicant concerning an anticipated application for leave to appeal (which application ultimately did not eventuate), this did not constitute an unreasonable act or omission by the Bigambul #2 Applicant causing another party to the proceedings to incur costs within the meaning of s 85A of the Native Title Act. 31 I am not persuaded that costs should be awarded against the Bigambul #2 Applicant in relation to the interlocutory application filed on 29 May 2023.

Conclusion 32 For the reasons stated above, it is appropriate that the Bigambul #2 Applicant pay the costs of the Gamilaraay Applicant of and incidental to the interlocutory application filed on 4 November 2022 on a party-party basis. Costs should be taxed if not otherwise agreed. 33 Each party should bear its own costs of and incidental to the interlocutory application filed on 29 May 2023. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Acting Chief Justice Collier.