Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia

1. There will be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 16 December 2016, I delivered judgment (Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2016] FCA 1528) on a question which Barker J had ordered to be heard and determined separately. The question affected three native title proceedings. The proceedings were the applications for the determination of native title commenced by the Nyiyaparli People in 1998 and 2013 (Actions WAD 6280 of 1998 and WAD 196 of 2013) and in 2012 by persons describing themselves as the Wunna Nyiyaparli (Action WAD 22 of 2012). 2 The separate question was: Was the paternal grandmother (that is, father's mother) of William (Bill) Coffin (born circa 1903), being a woman described by the Wunna Nyiyaparli Applicant as Maggie, a Nyiyaparli person, that is, a person descended from Nyiyaparli ancestors or possessing rights and interests in the land and waters comprised in the area of the Wunna Nyiyaparli claim and with a connection to those land and waters, both in accordance with traditional laws acknowledged and traditional customs observed by the Nyiyaparli People? 3 In the principal judgment, I answered the separate question in the negative and, in accordance with the orders of Barker J concerning that contingency, made consequential orders that three members of the Wunna Nyiyaparli (Ailsa Roy, Marjorie Drage and Ernest Coffin) be removed as respondents to Action WAD 6280 of 1998 and that the application of the Wunna Nyiyaparli be dismissed. 4 On the application of the Nyiyaparli at the time of the delivery of the judgment, I reserved the question of costs. The Nyiyaparli have since applied (with a written submission) for an order that the applicant in Action WAD 22 of 2012 pay their costs of that proceeding to be taxed or agreed. They have not sought any costs order with respect to Actions WAD 6280 of 1998 and WAD 196 of 2013. The "applicant" in Action WAD 22 of 2012 comprised Ms Betty Peterson, Mr Ernest William Coffin, Ms Marjorie Drage, Ms Ailsa Roy and Mr Stephen Peterson. 5 After discussion with the parties on 1 February 2017 as to a convenient way for the Wunna Nyiyaparli to make submissions on the Nyiyaparli application for costs, I directed that the Wunna Nyiyaparli applicant file and serve written submissions on that question by 16 February 2017 and indicated that I would then make a decision on the papers. 6 The Wunna Nyiyaparli applicant (who is unrepresented) did not file any submissions. On 23 February 2017, the parties were informed that the Court would proceed to decide the question of costs on the material now before the Court. 7 The question of costs in native title proceedings is governed by s 85A of the Native Title Act 1993 (Cth) (the NT Act). Section 85A provides: 85A Costs (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 In Cheedy on behalf of the Yindjibarndi People v Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23, the Full Court (North, Mansfield and Gilmour JJ) summarised the authorities concerning the effect of s 85A as follows at [9]: (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 [Federal Court of Australia Act 1976 (Cth)]; (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 … . (Citations omitted) 9 In the present case, the Nyiyaparli contend that a costs order is appropriate because the Wunna Nyiyaparli applicant acted unreasonably within the meaning of s 85A(2) in two respects: (a) by making the claim that Maggie (the asserted mother of Bill Coffin Snr) was a Nyiyaparli person, when there was no reasonable basis for such a claim; and/or (b) by maintaining the claim, and therefore putting the Nyiyaparli applicant to the expense of participating in the separate question hearing, in circumstances in which the applicant did not substantively participate in and prosecute the claim. 10 The Nyiyaparli point to Oil Basins Ltd v Watson [2014] FCAFC 154 as an example of a case in which a costs order was made because a party (a respondent in that case) did not have reasonable grounds for the position which it took in the litigation. 11 There is, in my view, a basis on which it can be said, especially when looked at in retrospect, that the Wunna Nyiyaparli applicant did not have a reasonable basis for their claim that Maggie was a Nyiyaparli person. As the Wunna Nyiyaparli application itself acknowledged, very little is presently known about Maggie and her origins. Her membership or otherwise of the Nyiyaparli had to be a matter of inference from a limited amount of evidence and, for the reasons which I gave in the principal judgment, that evidence did not indicate that Maggie had been Nyiyaparli. Furthermore, the Wunna Nyiyaparli's reliance on the laws and customs of the Western Desert Society for the assertion that Bill Coffin (born circa 1903) had been recognised as Nyiyaparli did not provide a reasonable basis for the Wunna Nyiyaparli applicant's claim in Action WAD 22 of 2012. 12 However, there are other circumstances which in my view make it inappropriate to conclude that the discretion granted by s 85A should, on this basis, be exercised in favour of the Nyiyaparli. The circumstance which I regard as particularly persuasive in this respect is that, from 2001 to 2010, members of the Coffin family had been expressly included in the Nyiyaparli application as part of the claim group. In particular, from 26 October 2005 until 10 June 2010, the Nyiyaparli application included in the claim group: (b) the descendants of Bill Coffin who identify and are accepted as Nyiyaparli People through Nyiyaparli traditional law and custom; 13 Thus, for a long period during the currency of the Nyiyaparli application, the Nyiyaparli had themselves been willing to recognise members of the Wunna Nyiyaparli as Nyiyaparli. 14 The amendment in June 2010 to exclude the members of the Coffin family followed further anthropological research conducted by the Nyiyaparli. That research indicated that, contrary to the basis upon which the Nyiyaparli application had been pursued until then, the descendants of Bill Coffin were not Nyiyaparli. It is evident that this was a matter of disappointment to the Wunna Nyiyaparli. It was their exclusion from the Nyiyaparli claim which led them to commence their own application in 2012. 15 As counsel for the Nyiyaparli acknowledged, quite fairly, it is not inherently unreasonable for former members of a claim group to dispute anthropological research and to seek to establish that they should in fact remain part of the claim group. Such disputes are of a conventional kind. The approach of the Wunna Nyiyaparli applicant in the present case is also understandable having regard to evidence indicating that, at least in some respects, Bill Coffin Snr and his descendants had been treated as Nyiyaparli until the issue became acute in the context of native title proceedings. 16 I mention, in case it be thought that I have overlooked it, that on my findings, the inclusion until 2010 of the Coffin family as members of the claim group in the Nyiyaparli application was in the nature of a compromise which was to operate until anthropological investigations had been completed. The Wunna Nyiyaparli applicant may be taken to have known that. Nevertheless, it is still understandable that, upon their exclusion, they wished (in effect) to maintain some claim to native title. 17 This aspect of the Nyiyaparli application for costs is evenly balanced. However, for the reasons just given, I am not willing to exercise the costs discretion in favour of the Nyiyaparli on the first basis which it has identified. 18 The second basis stands differently. In the principal judgment, I set out in some detail the programming orders which the Court had made for the orderly conduct of the hearing of the separate question. I also set out the course of events commencing in mid-March 2016 by which the Wunna Nyiyaparli applicant did not participate cooperatively in the arrangements for the hearing, did not attend directions hearings and ignored correspondence from the Court and from Yamatji Marlpa Aboriginal Corporation (YMAC), acting on behalf of the Nyiyaparli. As I found at [46] of the principal judgment, it seemed that the Wunna Nyiyaparli applicant had, until on or shortly before the commencement of the hearing on 11 July 2016, made a deliberate decision not to comply with the orders intended by the Court for the conduct of an orderly and fair trial. 19 I refer particularly to the Wunna Nyiyaparli applicant's failure to attend the directions hearings on 24 March 2016 and on 3 and 18 May 2016, their failure to attend a case management conference on 13 April 2016; their failure to comply with the Court's programming orders after March 2016; their failure to respond after 9 March 2016 to correspondence from YMAC and to correspondence from a District Registrar of the Court dated 20 and 29 April 2016; and to their failure to comply with the Court's order on 3 May 2016 that, by 13 May 2016, they file and serve a notice indicating one way or another whether they wished to participate in the hearing of the separate question and, if so, the manner in which they proposed to participate. 20 The Wunna Nyiyaparli applicant has not advanced any proper justification for this conduct. It is properly characterised as unreasonable and had the effect of causing the Nyiyaparli to incur unnecessary costs. 21 Accordingly, I am satisfied that the Wunna Nyiyaparli applicant (that is, the five persons comprising the Wunna Nyiyaparli applicant) should bear the costs incurred by the Nyiyaparli unnecessarily after mid-March 2016. 22 There is a question as to how those costs should be identified. Given my rejection of the first basis upon which the Nyiyaparli sought a costs order, the Wunna Nyiyaparli applicant should not have to meet all the costs incurred by the Nyiyaparli in relation to Action WAD 22 of 2012 or in relation to the hearing of the separate question. In particular, they should not have to meet the costs incurred by the Nyiyaparli in complying with the programming orders made by Barker J in relation to the hearing of the separate question as it would have been necessary for the Nyiyaparli to incur those costs in any event. Further, the Wunna Nyiyaparli applicant should not have to meet the costs of the hearing on 11 July 2016. That hearing would also have been necessary in any event. In fact, but for the conduct of the Wunna Nyiyaparli applicant after mid-March 2016, it can be said that the hearing of the separate question would have occupied much greater time and thereby have caused the Nyiyaparli to incur greater expense. 23 In my opinion, the appropriate order is that the Wunna Nyiyaparli Applicant pay the costs which the Nyiyaparli incurred in relation to the hearing of the separate question which they would not have incurred had the Wunna Nyiyaparli applicant informed the Court on 24 March 2016 that they did not wish to participate in the hearing of the separate question and the Court had then put in place the arrangements made by the orders on 18 May 2016. These will include, but not be limited to, the Nyiyaparli Applicant's costs of and incidental to the directions hearings on 3 and 18 May 2016. 24 Those costs are to be taxed if not agreed. 25 In Actions WAD 6280 of 1998 and WAD 196 of 2013, there be no order as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.