McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia

CHARLESWORTH J 1 The applicant applied on behalf of the Barngarla people under s 13 of the Native Title Act 1993 (Cth) (NT Act) for a determination of native title in respect of an area south of Port Lincoln in South Australia (the Barngarla SEP claim). On the interlocutory application of the State of South Australia, the Court has ordered that the Barngarla SEP claim be summarily dismissed under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth). Reasons for the order are published as McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875. 2 The State now applies for an order that the applicant pay its costs of and incidental to its successful interlocutory application. With the agreement of the parties, the costs application has proceeded on the papers. The Court has before it written submissions of the parties, together with an affidavit of Mr Samuel John Nelson (solicitor for the State) affirmed on 8 February 2021.

The reasons in McNamara 3 These reasons are to be read in conjunction with the reasons published in McNarmara. As detailed there, the applicant on behalf of the Barngarla People first lodged a native title claim in 1996 over a wide area on the Eyre Peninsula, including the same area south of Port Lincoln the subject of these proceedings. A number of claims in the region were made by other groups (including the Nauo people), creating complex territorial overlaps which eventually resolved after years of mediation and negotiation. A trial of the connection issues in the Barngarla claim then ensued before Mansfield J, including in relation to the land and waters including the area south of Port Lincoln. His Honour delivered judgment on 22 January 2015: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213. Mansfield J concluded that the Barngarla people did not possess native title rights and interests in the area south of Port Lincoln: Croft at [709] and [718]. Importantly for present purposes, Mansfield J concluded that the evidence was insufficient to show that the Barngarla people acquired native title rights and interests in the area after sovereignty from the Nauo people in accordance with Aboriginal traditional law and custom. Following these findings the parties consented to a determination of native title with respect to the balance of the claim area: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft No 2). At the time that the determination was made, there was an order dismissing that part of the proceeding that fell outside of the determination area. 4 Following the judgment in Croft No 2 an application for a determination of native title was lodged on behalf of the Nauo people in respect of the area south of Port Lincoln (Nauo No 2). The Barngarla SEP claim was commenced in 2016. It wholly overlapped the claim area in Nauo No 2. 5 The State filed its interlocutory application in this proceeding on 14 April 2020. In opposing the application, Counsel for the applicant argued that the Barngarla people should be permitted to prosecute the Barngarla SEP claim because it was founded on principles of "conjoint succession" that had not been heard or finally determined by Mansfield J: McNamara at [42] - [43]. I rejected that argument. I concluded that the Barngarla people had agitated the question of succession in the earlier proceeding but had failed to discharge their burden of proof in respect of it: McNamara at [55]. 6 The State submitted (and it was accepted) that the asserted factual basis for the Barngarla SEP claim was not materially different from that which had been previously litigated and rejected in Croft: McNamara at [46]. Consequently, I concluded (at [75]) that: … the Barngarla SEP claim is liable to be summarily dismissed as an abuse of process. It is for that reason that the claim cannot enjoy reasonable prospects of success. It is unnecessary to enquire whether such a claim could have succeeded on its substantive merits had it been presented in a different way at the trial in Croft. It is sufficient to find (as I have done) that the claim group had a fair opportunity to advance and prove a case founded in succession at that trial. It did in fact advance that case, but did not discharge the burden of proof in respect of it. …

PRINCIPLES 7 The Court has discretionary power to award costs: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 43. In addition, s 85A of the NT Act 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. 8 As Lee J said in Ward v Western Australia (No 2) (1999) 93 FCR 305 at [36], the statement in s 85A(2) of the NT Act "does not add to the discretion already possessed by the Court but reflects the public interests in such conduct being subjected to the penalty of an appropriate costs order". His Honour said: 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. 9 Lee J's construction in Ward (particularly his Honour's observation at [35]) was approved by the Full Court in De Rose v South Australia (No 2) [2005] FCAFC 137 at [8] - [10]. See also Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [9]; State of Western Australia v Banjima People [2016] FCAFC 46 at [4]. 10 It may be accepted that the dismissal of an application as an abuse of process may form a sufficient basis for an award of costs against a native title applicant under s 85A of the NT Act: Booth on behalf of the Kungardutyi Punthamara People v State of Queensland (No 2) [2017] FCA 844. 11 However, proof of an unreasonable act or omission is not an essential precondition to the discretionary power to award costs under s 85A(1). As the authorities make plain, s 85A(2) is not intended to limit the power conferred under either s 85A(1) of the NT Act or under s 43 of the FCA Act: cf Fair Work Act 2009 (Cth), s 570. 12 If I am wrong in that conclusion, I am satisfied in any event that the applicant has acted unreasonably in continuing the present proceeding such that the discretion to award costs in favour of the State is enlivened, however s 85A is construed.

APPLICATION OF PRINCIPLES 13 The State submits that the costs order should follow from the conclusion that the Barngarla SEP claim was held by the Court to constitute an abuse of its processes together with the circumstance that the Barngarla people persisted with the application after being put on notice of the State's position in respect of it. 14 An application for costs was included among the orders sought on the State's interlocutory application. In addition, on 16 July 2020, the State wrote to the applicant's solicitor inviting the applicant to withdraw the proceeding. The State foreshadowed that if the claim was not withdrawn, then it may seek an order for costs of its application in the event that it was successful. The applicant's solicitor responded in terms that made it plain that the State had indicated at an earlier time that costs would be sought. 15 I observe that the applicant proceeded to defend the State's application aware of the risks that a costs order may follow the event if it succeeded. Rather than discontinue the Barngarla SEP claim, the applicant put the State to the costs of preparing its application. In light of the reasons given in McNamara¸ that circumstance is sufficient to warrant an order that the applicant pay the State's costs. The purpose of such an order is not to punish the applicant, but to compensate the State for its costs in prosecuting its interlocutory application. The State's application was timely and appropriate, designed as it was to prevent an abuse of the Court's processes constituted by the Barngarla SEP claim. 16 There are strong considerations in favour of the costs order sought by the State. In my view, they are not outweighed by the matters raised in the written submissions of the applicant. 17 The applicant submitted that the costs order should not be made because the land and waters to which the Barngarla SEP claim related were the same as the land and waters over which a native title determination was already sought in existing proceedings, namely the Nauo No 2 claim. It is difficult to comprehend how that circumstance militates against an order for costs. On the premise that the proceedings in Nauo No 2 was properly commenced (which was not disputed by the applicant), the effect of the Barngarla SEP claim was to create a territorial overlap over the area, and not for the first time: McNarmara at [19]. Upon the creation of that overlap, s 67 of the NT Act operated so as to prevent the Nauo No 2 claim from proceeding to trial in the ordinary course. The commencement of the Barngarla SEP claim unduly disrupted the progress of Nauo No 2 to an orderly resolution. The circumstance relied upon does not provide a proper basis to refuse the State's application, confined as it is to an order for the compensation of the costs of its own interlocutory application. 18 Next is was submitted that the Barngarla people "dealt with the SEP Claim expeditiously". The factual basis for that submission is unclear. Not long after it was filed, the Barngarla SEP claim was met by the State's interlocutory application. Whilst I am satisfied that that application proceeded to a hearing with as much expedition as could be achieved in the circumstances of the COVID-19 pandemic, that is an objective to be achieved in all proceedings in this Court. It does not detract from the Court's earlier conclusion that the Barngarla SEP claim was one that ought not to have been commenced, nor from the circumstance that the applicant put the State to the costs of preparing and arguing its interlocutory application. 19 Next, it was submitted that there had been no suggestion that in filing the Barngarla SEP claim the applicant was acting other than in good faith. Whether the claim was brought other than in good faith is not necessary to decide. The State's application for costs is made on the basis that the proceeding was an abuse of process in the sense upheld in McNamara. Demonstration of bad faith may warrant an order that costs be paid on an indemnity basis, but that is not the State's application. 20 The applicant then relies on a number of arguments advanced at the hearing of the State's application. For example, it was submitted that the applicant had not sought to argue that any of the conclusions of Mansfield J in Croft were wrong and hence had not sought to re-litigate any issue that was resolved in that case. That category of submissions does not engage with the conclusions expressed in McNamara, particularly the finding that the succession claim had been both agitated and rejected in Croft. 21 Relatedly, it was submitted that the asserted claim founded on conjoint succession had not been conclusively determined. For the reasons given in McNamara at [55], I do not accept that contention. As stated there, Mansfield J heard argument in relation to conjoint succession, but concluded that the Barngarla applicant had not established its case. The ultimate dismissal of the earlier claim (by an order in Croft No 2) was consistent with his Honour's conclusion and finally resolved the question of whether the Barngarla claimants held native title rights and interests in the area south of Port Lincoln. 22 Next, it was submitted that the Barngarla SEP claim was not expressly prohibited by the NT Act. That may be so, but the absence of an express statutory prohibition on the commencement of a claim does not mean that the general law principles relating to summary dismissal cannot apply. 23 The applicant submitted that the circumstances of the case were such that if a costs order were not made, other would-be litigants would not be encouraged to commence proceedings of the same kind. In my view, whether or not the making of the order (or the refusal to make the order) would have a deterrent effect on the conduct of other potential litigants is not a relevant consideration. The discretion to award costs is to be exercised for a compensatory purpose. 24 The applicant also relied on the unique subject matter of the Barngarla SEP claim and the importance of the claim to applicant. It was submitted that the costs order would serve to "punish" the Barngarla people for pursuing those important objectives. I do not accept that submission. The applicant has been legally represented throughout this proceeding, as it was in Croft and Croft No 2. As a party to legal proceedings the applicant had the rights and duties of any other litigant in this Court. Its choice to continue the proceeding had the consequence that the State was put to the expense of prosecuting its interlocutory application. I do not consider it desirable that the State bear its own costs of that application in all of the circumstances I have described. 25 I consider the applicant acted unreasonably within the meaning of s 85A(2) of the NT Act in refusing to withdraw the Barngarla SEP claim, and in defending the State's application. However, as I have said, it is not necessary to categorise the conduct in that way. The order for costs can and should be made in the Court's discretion, even if the applicant's conduct does not meet the description in s 85A(2) of the NT Act. 26 For clarity, the order for costs will be expressed to include the State's costs of preparing the submissions and affidavit read on this costs application, which formed a part of its interlocutory application dated 14 April 2020. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

SCHEDULE OF PARTIES SAD 26 of 2020 Applicants Fourth Applicant: KEVIN RICHARDS Fifth Applicant: LIONEL RICHARDS Sixth Applicant: VERA RICHARDS Seventh Applicant: EMMA RICHARDS Interested Person: CITY OF PORT LINCOLN Interested Person: DISTRICT COUNCIL OF LOWER EYRE PENINSULA Interested Person: DALYNCO PTY LTD Interested Person: ROSSLYN ANN ROWE Interested Person: ROWESONS PTY LTD Interested Person: ROWE FISHERY PTY LTD Interested Person: LESLIE ALLEN POLKINGHORNE Interested Person: AQUACULTURE RESAERCH PTY LTD Interested Person: DEEP VENTURE NOMINEES PTY LTD Interested Person: TELSTRA CORPORATION LIMITED (ABN 33 051 775) Interested Person: NAUO #2 PEOPLES