Murray on behalf of the Yilka Native Title Claimants v State of Western Australia

GENERAL DIVISION WAD 297 of 2008

BETWEEN: HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS

AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS

REASONS FOR JUDGMENT 1 On 2 July 2010, judgment was handed down on a notice of motion filed by the applicant: Murray on behalf of the Yilka Native Title Claimants v State of Western Australia [2010] FCA 595 (Yilka). In relation to that motion, a number of parties had given notices indicating they wished to become parties to the proceeding (the Form 5 applicants). The procedure was not unusual but the applicant contended that the notices were deficient in a number of respects and should not be accepted. The applicant moved for orders that each of the Form 5 applicants was not a party to the main application. 2 I held that Pearlie Wells, Lynette Graham (nee Blowes), Bessie Dimer, Daisy Dookie Rundle, Laurel Cooper and Lorrine Griffiths should not become parties to the proceeding. 3 However, the applicant's motion was unsuccessful against Michael Tucker, Fabian Tucker, Alison Tucker (nee Barnes), Daniel Tucker, Ron Harrington-Smith, Kathy Tucker, Corina Bennell, Lisa Bennell, Jarred Dimer, Brett Dimer, Shondelle Dimer/Garlett, Quinton Tucker, Shaun Dimer, Matthew Bennell and Hilda Dimer. I found that those persons should not be precluded from becoming parties to the main application. 4 I requested that those counsel who had made submissions endeavour to agree a minute of consent orders reflecting the conclusions in Yilka, or if that proved impossible, to file brief submissions concerning the appropriate form of the orders. A Minute was agreed between three of the four representatives. Agreement could not be reached with the legal representative for form 5 applicants Michael Tucker, Fabian Tucker, Alison Tucker (nee Barnes) and Daniel Tucker, as those individuals are seeking costs against the applicant. 5 The costs issue is the only matter that remains in issue.

STATUTORY FRAMEWORK 6 Section 81 of the Native Title Act 1993 (Cth) (the Act) confers on the Court exclusive jurisdiction to hear and determine applications filed in the Federal Court that relate to native title. The notice of motion filed by the applicant relates to a native title application that is pending before the Court. In such circumstances, s 85A of the Act applies to the question of costs. 7 The Court's general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation (Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732). In the exercise of that discretion, ordinarily costs follow the event (Ruddock v Vadarlis (2001) 188 ALR 143 at [11]). 8 That usual principle has been displaced by s 85A of the 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. 9 It has been held that s 85A(2) of the Act does not in any way limit the Court's discretion under s 85A(1) to order a party to pay the costs of an opposing party. Rather, it 'removes any ground for anticipation or expectation that unless cause is shown for some other order to be made costs will usually follow the event' (Ward v Western Australia [1999] 93 FCR 305 at [33]) 10 In De Rose v South Australia [2005] FCAFC 137, the Full Court (at [8]-[10]) cited with approval the following observations by Lee J in Ward: a. Section 85A(1) is intended to remove any ground for anticipation or expectation that unless cause is shown for another order, costs will follow the event (at [33]). b. Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion (at [31] -[32]). c. There is no requirement that a threshold condition be met before the Court is empowered to make a costs order. It follows that the exercise of discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the exercise of special circumstances (at [35]). d. Section 85A(2) of the Act puts beyond doubt the extent of the Court's discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1) (at [36]-[37]). e. The matters to be taken into account in making a costs order are left to the Court's discretion, which must be exercised judicially. However the starting point is 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 (at [34]). 11 Since Ward, there have been a number of decisions in this Court where such an order has been made. In Davidson v Fesl (No 2) [2005] FCAFC 274, a Full Court had dismissed an application for leave to appeal a decision by the primary judge to discontinue a native title determination proceeding. The motion to discontinue was brought by Mr Fesl, who alone was named as the applicant to the main application. The Court found that the leave to appeal application was 'not only without merit' but 'seemed to serve little, if any, practical purpose' [at 12].

CONSIDERATION 12 Michael Tucker, Fabian Tucker, Alison Tucker (nee Barnes) and Daniel Tucker argue that the applicant's motion was unnecessary, since it was not for the applicant to challenge defects in the Form 5 notices. Those individuals also submit that the applicant caused extra costs to be incurred by putting forward lengthy submissions, which required submissions in response. 13 I do not agree. The applicant's motion was successful against 6 of the Form 5 applicants. As to those Form 5 applicants where the applicant failed, it cannot be said that there was no proper foundation for the motion such that it was unreasonable within the meaning of s 85A(2) . I do not accept that the motion was totally without merit or that the applicant was acting unreasonably by putting comprehensive submissions before the Court. I do not consider the circumstances warrant a departure from the presumption that parties should pay their own costs. 14 As such, I will make the following orders reflecting the reasons in Yilka. 1. Each of the following persons is not a party to the proceedings: Pearlie Wells, Lynette Graham (nee Blowes), Bessie Dimer, Daisy Dookie Rundle, Laurel Cooper and Lorraine Griffiths. 2. Each of the persons named in Order 1 have leave to apply pursuant to s 84(5) of the Native Title Act 1993 (Cth) within 21 days of this order to be joined as a party. 3. The applicant's notice of motion dated 4 February 2010 is dismissed in relation to the following persons: d. Michael Tucker, Fabian Tucker, Alison Tucker (nee Barnes), and Daniel Tucker; e. Ron Harrington-Smith; f. Kathy Tucker, Corina Bennell, Lisa Bennell, Jarred Dimer, Brett Dimer, Shondelle Dimer/Garlett, Quinton Tucker, Shaun Dimer, Matthew Bennell and Hilda Dimer. 4. Within 21 days of the date of this Order, each of the persons named in Order 3 file and serve an amended Form 5 notice setting out briefly but precisely the interest or interests relied on. 5. The persons named in Order 3(a) be represented by Daniel Tucker. 6. The persons named in Order 3(c) be represented by Quinton Tucker. 7. Within 21 days of the date of this Order, the person named in Order 3(b) file a Notice of Appearance identifying the person who will represent him. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.