far west coast
93 In Far West Coast Mansfield J considered an application for an order as to costs in connection with an interlocutory application made by a respondent to a native title application. After referring to s 43 of the Federal Court Act and s 85A of the Native Title Act, Mansfield J noted that the Native Title Applicant was seeking costs against the relevant party ("Miller"), and that Miller submitted that :
… there is no liability owed by [the Native Title Applicant) to their legal representative [the representative body]. That is because [the representative body] will not charge [such applicant] for the legal services it has provided, and in turn [the representative body] receives funding from the Commonwealth for the services which it conducts to fulfil its function under the [Native Title Act] including the conduct of this proceeding for the [Native Title Applicant].
94 His Honour observed that similar orders had been previously made in similar circumstances.
95 Counsel for Miller submitted that although representative bodies were analogous to legal aid bodies, established under State or Territory legislation, such legislation generally permitted those bodies to seek orders for costs. Miller submitted that, in the absence of any such statutory authority, a representative body under the (Native Title Act) could not charge for legal services, and so the assisted party, having the benefit of an order for costs, could not recover an amount which it had no liability to pay. Mansfield J observed that the relevant native title applicant had not personally incurred legal costs by "engaging" the representative body, but that the representative body had incurred costs in resisting Miller's application.
96 His Honour said, at [18]-[21]:
18. In my view, this situation is analogous to the relationship between the Crown and its legal officers. In Inglis v Moore … , 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 … , 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 … 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 … per Gallop J.
97 There appears to be an inconsistency between the reference in the first subparagraph of [18] to the successful party's not being under a personal liability to the Crown solicitor for costs, and the reference at [21] to such person "notionally" incurring such a liability. Much may depend upon the meaning of the word "notionally".
98 His Honour considered that there was a "close analogy" between that situation and the relationship between a representative body and a native title applicant. His Honour then observed that although such an applicant may not expect to be liable to pay for costs incurred by a representative body's legal officer, "the relationship is such that underlying it is the understanding that such a liability may exist". There is no explanation as to how or why such liability "underlies" the relationship. As I have said, the decision in Inglis v Moore does not depend upon the existence of any such liability.
99 Inglis v Moore recognizes that the Crown may make its legal officers available to act for a party to litigation if it has an interest in that litigation. As I have observed the Court may determine whether the Crown has such an interest. See Inglis v Moore at p 472, and Brownsea Haven Properties Ltd v Poole Corporation [1958] 1 Ch 574 at 592 and 607. As I have also observed, the decision in Inglis v Moore is not dependent upon any liability as between the represented party and the Crown legal officer. At page 472, St John and Brennan JJ said:
It has long been the rule that 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: cases which define or illustrate the rule include Irving v Gagliardi; MacLaurin v Hall; Lenthall v Hillson; Ex parte W.A. Grubb Pty Ltd; Re Johnston; and Blackall v Trotter (No 1). In the case last mentioned the Full Court of the Supreme Court of Victoria said: "In our opinion, neither in that case nor in Lenthall v Hillson, did the Court base its decision on the ground that there was any liability of the party represented to the Crown-employed solicitor for costs. Both cases, in our opinion, decided that in the circumstances the 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. Since expense was incurred, albeit not by the party on the record, in the employment of the solicitor, the decisions are distinguishable from cases such as Gundrey v Sainsbury where no expense at all was incurred in the employment of the solicitor.
[Footnotes omitted.]
100 The extract from Blackall v Trotter (No 1) is self-explanatory but the matter was taken further in Lenthall v Hillson [1933] SASR 31 at 36-39. In that case the Court concluded that the rationale of the cases was that where proceedings were brought in the name of one party (the "nominal party") but, in fact, they were being conducted by another party (the "real party") for the purposes of taxation, costs were given by way of indemnity to the real party in whose interest the costs were incurred, although the order was made in favour of the nominal party. Napier J (for the Court) observed that the general rule was that, "the Courts of law would not notice any rights or liabilities other than those appearing on the record, and the party on the record was the only person for, or against, whom the judgment could be given." His Honour then referred to cases in which a beneficiary was allowed to sue in the trustee's name without obtaining his or her consent. At 37 Napier J continued:
The typical case was the assignment of a debt and the practice is stated in Lush, at p 226: - "If a person assigns a debt to another he impliedly gives that person authority to sue in his name (citing Pickford v Errington, (1835) 4 D.P.C. 453) … but in all cases the person whose name is on the record as the plaintiff is entitled to an indemnity to cover his liability for costs, and no action should be commenced till his consent has been sought for, and a sufficient indemnity tendered and refused. The question then arises in one of two ways, either upon an application by him to set aside the proceedings, or if he gives a release, etc."
It is apparent that in these circumstances the rule that costs are an indemnity must have been understood, as it was understood in Irving v Gagliardi, i.e. as applying to the liability of the real and not of the nominal plaintiff.
101 At 38, his Honour continued:
The question in the present case arises upon the construction of the Statute. It is the same question as in Attorney-General v Shillibeer (supra), i.e. the meaning of the word "costs," and we think that the meaning of the word, as it was formerly used in the Ordinance 6 of 1850, must be determined by reference to the practice current at that time. In our view of the authorities it is manifest that, in the Courts of common law, "costs" were understood as an indemnity to the party bringing the action, without regard to the liability of the nominal party, whose name must necessarily appear upon the record. We think that this view was accepted in R v Archbishop of Canterbury, [1903] 1 K.B. 289, where the Court of Appeal refused to disallow the taxed costs of the solicitor to the Treasury, who defended on behalf of the Archbishop. See per Romer L.J., at p. 295.
102 In the later decision of Blackall v Trotter (No 1) [1969] VR 939, the Victorian Full Court indicated that it would not limit the "principle" to the situation in which a Crown-employed solicitor acted for a party, referring to the decision of the New South Wales Full Court in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50. In that case proceedings had been taken in the name of a person who had been indemnified for his costs by the "real" party. Clearly the "real" party had taken the action in the name of the "nominal" party, presumably because the former had an interest in the proceedings.
103 It has not been suggested that KLC had any interest of the relevant kind in the Native Title Application. In a broad sense, KLC had, by virtue of its statutory duties, some interest in the conduct of native title proceedings in the area for which it was responsible, but in my view, it cannot be said that it had any particular interest in the outcome of the Native Title Application. It was, in no sense, the "real" party, just as the Native Title Applicant was, in no sense, merely a nominal party.
104 In Inglis v Moore, St John and Brennan JJ identified the Crown interest (at 473) as "an interest in protecting its employees against claims brought against them in respect of acts done within the scope of their employment … not only to protect the Commonwealth from claims made against it on the footing of its vicarious liability … but also to protect employees in performing the functions of their employment from the risk of a personal liability for costs, …".
105 The decision in R v The Archbishop of Canterbury ex parte Cobham [1903] 1 KB 289 is one of the seminal cases in this area. Cobham sought mandamus against the Archbishop. The Crown offered to conduct the case on behalf of the Archbishop. The offer was accepted. In these secular times, it may seem that the government had no real interest in those proceedings. However the Archbishop was the head of the established Church, and therefore closely linked to government. In other circumstances mandamus would not have been available. Further, as the headnote reveals, the circumstances in which relief was sought was a matter in which the Crown had an interest. The report of the decision at first instance (reported at [1902] 2 KB 503) indicates that the matter concerned the validity of the appointment of a bishop, whose appointment required the King's assent. Hence there was a substantial legal, perhaps even constitutional interest in the matter.
106 Properly understood, the present case cannot be treated as being analogous to that in Inglis v Moore. There is no question of any "real" or "nominal" party. Further, the decision offers no basis for inferring, in the present case, that the Native Title Applicant undertook any "underlying" liability to pay costs and outlays to KLC. Indeed the decision in that case was clearly based upon the proposition that the rule or practice relating to Crown representation was not based upon any express or implied liability, on the part of the represented party, for the costs and outlays incurred by the Crown.
107 The last four sentences of [22] in Far West Coast are said to demonstrate the appropriateness of the analogy. With all respect, I am unable to accept that proposition. The practice concerning Crown solicitors is not dependent upon fulfilling any statutory duty. It rather involves an exercise of the Crown's administrative function, lacking any specific statutory basis. The practice does not depend upon there being specific funding for the provision of Crown representation. The practice is based solely upon the interest of the Crown in the matter. The proposition that in some circumstances, the representative body might meet an order for costs made against a native title applicant, is irrelevant. Further there is no specific provision establishing any liability to do so, unless it can be seen to be incidental to the facilitation and assistance function.
108 The judgment in Far West Coast at [23] is difficult to understand. Whilst representative bodies and legal aid bodies may both provide legal assistance, using government money, that characteristic, in itself, says nothing about the relationship between an entity of either kind and a recipient of such legal assistance, or the capacity of such an entity to recover costs and outlays from such a recipient.
109 The absence of any "specific costs regime" in the Native Title Act cannot possibly assist in drawing an inference as to the Native Title Applicant's liability to pay. The assertion that there is no difference "in principle" between representative bodies and legal aid bodies has little meaning in the absence of any identification of the principle in question. Further, the issue is not whether a representative body can seek costs in that capacity. The question is whether a Native Title Applicant may recover, pursuant to an order for costs, cost and outlays which it is not liable to pay. Further, in each case, the nature of the entity must be determined by reference to the relevant statute. There is no warrant for assuming that all bodies providing legal assistance (including representative bodies) under Commonwealth, State and Territory legislation have similar purposes and are intended to operate in similar ways.
110 It is then said that s 85 of the Native Title Act confers a wide jurisdiction to make costs orders. Undoubtedly, Mansfield J meant to refer to s 85A. Opinions may differ as to the width of that power, given that the starting point is that there should be no costs orders. However it is true that orders may be justified in many different circumstances. This case is not about the power to order costs. As was pointed out in Lenthall, it is rather about the meaning of the word "costs" in the context in which it is used, including the provisions of the Native Title Act. The point is that in the context of legal proceedings, the word "costs" inevitably carries with it, the notion of indemnity. It cannot seriously be argued that Parliament intended, in enacting s 85A, to empower this Court to make costs orders which go beyond the indemnification of the relevant party against his or her liability to pay such costs.
111 It is said that if a representative body retains independent lawyers, "[i]t would be difficult to suggest that the independent lawyer … should not be able to seek costs from another party in appropriate circumstances". There is, with all respect, a certain awkwardness of language in that assertion. A lawyer cannot generally seek an order for costs against a party. Any order will be in favour of the lawyer's client. The client's capacity to recover under such an order depends upon his or her having incurred liability to pay. If the client is liable to pay the lawyer, the former, not the latter, will recover the amount from the other side. The question is whether there is any such liability.
112 Finally, it is said that, "[T]o preclude [representative] bodies from seeking costs orders through [a native title] applicant, including disbursements such as those to counsel, when appropriate could work obvious injustice in a real and practical sense where [the representative body] is either funding the legal services for [a native title applicant] or is providing its own legal resources to [a native title applicant]".
113 With all respect, I do not accept that the present problem can be resolved by reference to generalized notions of justice. The problem arises out of the way in which KLC and, perhaps, other representative bodies conduct business. If such a body wishes to ensure that a native title applicant can recover under any order for costs, it need only enter into an appropriate agreement with it, either at the commencement of the proceedings or prior to the incurrence of a particular cost or outlay. No doubt there will be difficulties. The relevant native title applicant may not wish to do so. The Commonwealth might disapprove. Alternatively, the representative bodies could seek appropriate amendments to the Native Title Act.
114 I do not accept that the decision in Far West Coast offers any assistance for present purposes.