Watson on behalf of the Nyikina Mangala People v State of Western Australia [2015] FCA 1404 | Case summary

Is oil basins liable to indemnify the claimants in respect of any costs? 10 The primary argument made by Oil Basins is that, because the claimants had no liability to pay their lawyer for costs incurred in the conduct of the proceeding, and in fact paid no costs at all, there was nothing to indemnify and all the items in the bill of costs should have been disallowed by the registrar. 11 Oil Basins contends that it has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. See Cachia v Hanes (1994) 179 CLR 403 at 410. 12 Referring to Stobbart v Mocnaj [1999] WASC 252, Oil Basins says it is fundamental that the objective of an indemnity costs order is to ensure that the receiving party is indemnified to the extent of that party's legal liability to pay costs. Oil Basins notes that Parker J observed, at [8] of that case, that if there is no legal liability at all, there is nothing to indemnify. 13 Oil Basins also says it is crucial to the Court's function, particularly in native title litigation, that the solicitor on the record is properly identified, referring to QGC Pty Ltd v Bygrave (2010) 186 FCR 376 at [44]-[57]; [2010] FCA 659. Oil Basins says that in this case the solicitor on the record was the principal legal officer of the KLC, Ms Cole, and not the KLC itself. It contends Ms Cole and the KLC have different roles, by reference to what Mansfield J said in Gorringe on behalf of the Mithaka People v State of Queensland [2010] FCA 716 at [9]. In that passage, Mansfield J noted the separate roles, in that case, of the solicitor on the record for the applicant, on the one hand, and Queensland South Native Title Services Limited (QSNTS) as the relevant representative body on the other, referring to what Reeves J had said in QGC at [27]-[57]. 14 In QGC, QSNTS applied to become a party to proceedings involving QGC, a delegate of the native title registrar and native title claimants in a native title determination application known as the Iman #2 claim. On the face of that claim, QSNTS appeared to be solicitor on the record for the Iman claimants. At [27]-[57], in the course of considering whether a conflict of interest would arise if QSNTS was joined as a party to proceedings, Reeves J dealt with questions relating to (1) who the solicitor on the record was, (2) appearing in litigation by a solicitor, and (3) the importance of the role of a solicitor on the record. At [30], Reeves J said that upon close consideration, it became apparent that since QSNTS was not a "solicitor" in any sense of the word, it could not be the "solicitor on the record" in the Iman #2 claim. Rather, on inquiry, it became apparent that the solicitor on the record was the principal legal officer of QSNTS, not QSNTS itself. Reeves J, at [44]-[51], canvassed the requirements of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the Rules of this Court, and the need for a solicitor's name and contact details to be nominated in the proceeding as the person who is on the record. At [57], his Honour concluded that his observations underscored the fact that the role of the solicitor on the record is critical to the Court's ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. 15 Plainly, in the present case, Ms Cole was the solicitor on the record, not the KLC as the representative body, and the requirements of the FCA Act and the Rules were complied with. 16 Nothing in either the decision in QGC, or in the observations of Mansfield J in Gorringe, however, assists in answering the primary issue raised in this proceeding. 17 Turning more precisely to the issue at hand, Oil Basins notes that at the taxation before the registrar on 7 April 2015 the current solicitor on the record for the claimants, Mr Kevin Murphy, the principal legal officer of the KLC, conceded that the claimants had no legal liability to pay any costs to Ms Cole. 18 Oil Basins contends that, there being no liability in the claimants to pay Ms Cole, and in circumstances where no costs were in fact paid, there is nothing to indemnify and accordingly all the items in the bill of costs should be disallowed. 19 Oil Basins submits that at the taxation on 7 April 2015, the registrar proceeded on the basis that the KLC was a community legal centre for the purposes of s 12(3)(h) of the Legal Profession Act 2008 (WA) and reg 5A of the Legal Profession Regulations 2009 (WA) (which regulation, it is noted, did not in fact commence until 1 August 2015) and accordingly was entitled to charge the claimants for legal services provided by the KLC. As to that proposition, Oil Basins says there was no evidence to support the finding that the KLC was a community legal centre and the evidence before the registrar was that the KLC had not given notice to the Legal Practice Board of Western Australia that it intended to commence engaging in legal practice in Western Australia. Moreover, Oil Basins submits that the KLC cannot be the "solicitor on the record" because only a natural person can be enrolled as a legal practitioner and hence be a lawyer for the purpose of R 4.01 of the Rules. 20 Oil Basins further submits that, in any event, whether or not the KLC was able to charge for legal services was not the relevant issue before the registrar at the taxation. It says there was no evidence before the registrar that the KLC or Ms Cole were engaged by the claimants or the terms of any engagement. Rather the evidence was that there was no costs agreement between the KLC and the claimants. 21 Oil Basins says that at the taxation on 7 April 2015, the solicitor now on the record, Mr Murphy, conceded that the claimants had no legal liability to pay any costs to Ms Cole. Oil Basins submits, that being the evidence, the only finding that could be made is that under no circumstances did the claimants have any legal liability to pay costs to Ms Cole. 22 Oil Basins also says there was no evidence before the registrar of the basis on which Ms Cole held a practising certificate under the Legal Profession Act, and it may be inferred that, because she was an employee of the KLC, she held at the relevant time a practising certificate subject to a condition pursuant to reg 97(h)(i) of the Legal Profession Regulations, that she "only engages in the provision of legal services on a not-for-profit basis and does not charge any person nor seek to recover a fee from any person". 23 To the extent that the claimants rely on Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 in support of the proposition that the claimants were entitled to claim costs, even though they had no legal liability to pay costs to their legal representative, Oil Basins submits the situation under South Australian law, in that case, was fundamentally different to the position now disclosed in Western Australia. Oil Basins submits that in South Australia community legal centres are not prohibited from providing legal services under s 23E of the Legal Practitioners Act 1981 (SA) and furthermore, community legal services are subrogated to the rights of an assisted person to costs in respect of legal assistance, under s 23I of that Act. 24 Oil Basins draws attention, on the other hand, to s 36 of the Legal Profession Act in Western Australia which makes specific provision for legal practice by government lawyers in Western Australia, which by s 36(1) may include a government agency prescribed by the regulations. It says neither the KLC nor Ms Cole were, at any relevant time, prescribed by regulation in this way in a similar manner, for example, to the prescription of legal practitioners by the Public Trustee. It submits that in the absence of any specific provision by regulation for the KLC or similar bodies in Western Australia, which either engage in legal practice or charge costs, s 12 of the Legal Profession Act applies, by virtue of s 79 of the Judiciary Act 1903 (Cth), and the KLC is prohibited from carrying on legal services. 25 By way of completeness, Oil Basins points out that this position has changed in Western Australia since 31 July 2015, when reg 5A was added to the Legal Profession Regulations to provide that s 12(2) of the Legal Profession Act does not apply to a person doing legal work under the supervision of an Australian legal practitioner as a paid employee of a community legal centre. 26 Thus, Oil Basins says it follows that the registrar ought to have disallowed the costs claimed by the claimants and allowed the bill in the sum of zero dollars. Alternatively, it contends the certificate of taxation should be set aside and the assessment of the bill of costs permanently stayed, having regard to the decision in Director of the Fair Work Building Industry Inspectorate v Abbott (No 7) [2015] FCA 969 at [34]-[37]. 27 The claimants do not dispute the key facts, to the effect that they have no liability to pay the costs of Ms Cole, the then solicitor on the record, and have not paid any costs. 28 The claimants say, however, three facts in addition to those set out in Oil Basins' submissions are relevant: (1) the KLC is recognised as a Native Title Representative Body (NTRB) under the NTA; (2) the KLC receives funding from the Commonwealth for the services that it conducts to fulfil its functions under the NTA; and (3) the KLC is a community legal centre for the purposes of the Legal Profession Act. 29 So far as the community legal centre question is concerned, senior counsel for the claimants said, in oral submissions, that the KLC's status as such provides an alternative argument to its primary argument on this application. 30 In that regard, the claimants say there is only one issue between the parties and that is whether the Court can apply Mansfield J's decision in Far West Coast Native Title Claim so as to dismiss the review application. 31 So far as the application of the Far West Coast Native Title Claim decision in the present circumstances is concerned, the claimants concede: there was no costs agreement between the KLC and the claimants; and the claimants have no liability to pay the KLC's costs. 32 However, the claimants contest the proposition put by Oil Basins that there was no retainer between the KLC or Ms Cole and the claimants, saying that plainly there was. It contends this can be inferred from the fact that Ms Cole was the solicitor on the record and from the many published decisions of the Court recording the fact that the KLC and Ms Cole acted for the claimants. Thus the claimants contend that it follows that while the claimants may not have expected to be liable to pay costs, underlying the relationship was an understanding that such a liability may exist; citing Far West Coast Native Title Claim at [22] to this end. 33 The claimants also contest the inference Oil Basins says should be drawn: that Ms Cole's practising certificate was subject to a condition that she only engage in the provision of legal services on a not-for-profit basis and not charge any person nor seek to recover a fee from any person. The claimants say this inference is not open and the regulation cited by Oil Basins was not in force on the date of the taxation. 34 I consider, in passing, that it is difficult to infer that Ms Cole's practising certificate was subject to such a condition. It may have been, but such a conclusion would be speculation and the material facts upon which such an inference could be drawn are not, in my view, readily discernible. The fact that the regulation cited by Oil Basins was not in force on the date of the taxation does not, one way or the other, affect the drawing of the inference. 35 In the circumstances, I agree with the submission made on behalf of the claimants that the key issue between the parties is whether the Court can follow Far West Coast Native Title Claim so as to dismiss the review. 36 Far West Coast Native Title Claim was a decision of Mansfield J on an application for costs by claimants represented by an NTRB. The application for costs related to interlocutory applications decided in the course of the native title determination application before the Court. A Mr Robert Victor Miller had sought rulings on a number of occasions and costs were sought by the claimants against him. He submitted that the claimants were not entitled to seek costs because there was no liability owed by the claimants to the NTRB, the South Australian Native Title Services Limited (SANTS). Mansfield J held that the claimants were entitled to seek a costs orders in the circumstances. 37 As noted above, Oil Basins seeks to distinguish that finding from the circumstances in the present case. The fact that in South Australia a community legal service is not prohibited from providing legal services is one factor raised; as is the entitlement of a community legal service to be subrogated to the rights of an assisted person to costs in respect of legal assistance. No similar provision, it is correctly pointed out, at least so far as the subrogation right is concerned, is given by Western Australian law in relation to such legal services. 38 The question arises, therefore, whether those factors are material to the ratio decidendi of the decision of Mansfield J in Far West Coast Native Title Claim. The claimants say they are not and that the material facts of the two cases are substantially the same, the only difference being one of location - Far West Coast Native Title Claim concerned a proceeding in South Australia and an NTRB located in South Australia. 39 After dealing with the primary power of this Court to award costs, contained in s 43 of the FCA Act, Mansfield J noted the general principle that costs follow the event in the absence of special circumstances justifying some other order, and pointed to the modification of that rule by s 85A of the NTA. By s 85A(2), if the 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, it may order the first-mentioned party to pay some or all of those costs. 40 His Honour then dealt with the question whether, as Mr Miller had submitted, the claimants in that case had no entitlement to seek costs from him because there was no liability owed by the claimants to their legal representative, SANTS. It was understood that SANTS would not charge the claimants for the legal services it had provided and, in turn, as the representative body for native title in South Australia under Pt 11, Div 2 of the NTA, that it received funding from the Commonwealth for the services which it conducted to fulfil its functions under the NTA. 41 Mansfield J, at [15], considered that the Court had awarded costs in favour of claimant groups previously, noting that in each of the three instances cited the legal representatives, like SANTS, were NTRBs recognised under s 203AD of the NTA. His Honour said it was noteworthy that the judgments in each of those three cases "did not address whether those Native Title Representative Bodies were publicly funded in a manner similar to SANTS and if so, whether costs ought to be awarded if the claim groups were not liable to those bodies for legal costs". 42 It is observed in passing that each NTRB referred to by his Honour in each of those three other cases was based in Western Australian: the Kimberley Land Council (Watson v State of Western Australia (No 3) [2014] FCA 127 - this proceeding), the Goldfields Land and Sea Council (A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 3) [2013] FCA 1134) and Central Desert Native Title Services (Tullock v State of Western Australia [2010] FCA 351). 43 It may be that his Honour, at [15], was using the expression "legal representatives" in a broad sense, and that the question whether, in a strict sense, those NTRBs were the legal representatives was not analysed. But plainly his Honour treated them as the representatives, in each case, of the claimants. It seems to me that he did so because of their status as NTRBs under the NTA. 44 At [16], his Honour noted that counsel for Mr Miller submitted that to the extent NTRBs may be considered analogous to legal aid institutions, there was no equivalent provision in the NTA, as under State legal aid regimes, conferring rights on the claimants or their publicly funded legal representative to pursue costs, and so NTRBs should not be able to recover such costs. 45 Mansfield J, at [17], said that although the claimants did not personally incur legal costs by engaging SANTS, there was "no doubt that SANTS incurred legal costs in defending Mr Miller's interlocutory application". This confirms that his Honour treated SANTS not as a solicitor on the record which incurred costs, but as the relevant NTRB which incurred legal costs in performing its statutory function under the NTA in acting for the claimants. 46 At [18], his Honour considered that statutory situation to be analogous to the relationship between the Crown and its legal officers whereby, on the authority of Inglis v Moore (No 2) (1979) 46 FLR 470 at 472 (St John and Brennan JJ), 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. The point was further made in that decision that 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. Mansfield J, at [19], said that this position was well-established, referring also to The Begairn (1916) 12 Tas LR 26 at 26-27 and Lord Advocate v Stewart (1899) 36 Sc LR 945 at 945. 47 Mansfield J, at [22], recognised that the relationship of a claim group and NTRB was a little different to that of the Crown relationship. In his Honour's view, however, there is a close analogy between such a case and cases involving the Crown. Firstly, his Honour said that where an NTRB 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 claimants and, even though the claimants 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. His Honour added that the NTRB is providing legal services, and fulfilling its statutory mandate, as contemplated by the NTA on behalf of those claimants. In addition, his Honour said, the NTRB in turn is funded to provide those services in a way which expressly provides for the application of those funds in that way. 48 His Honour added that the reverse to the application before him may also occur. A costs order under s 43 of the FCA Act, having regard to s 87A of the NTA, may be made in appropriate circumstances against claimants, and those costs would then in the normal course be paid through the NTRB, provided the claimants were represented through it. 49 At [23], Mansfield J observed that legal aid institutions and NTRBs 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. His Honour said that: 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 Part 11 the NT Act. 50 His Honour, at [24], rejected the proposition that, because the NTA does not contain detailed statutory guidance like that in legal aid regimes, a different conclusion should be drawn. His Honour said: 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 Part 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. 51 In my view, with respect, his Honour also made a very pertinent observation, at [25], that if an NTRB is unable to seek a costs order, it will always be the position that there will be no costs orders when the party represented by an NTRB is successful, however a respondent party may conduct its case. On the other hand, the argument of Mr Miller would mean that if a party represented by an NTRB is unsuccessful, that party is left open to an adverse costs order. His Honour said that outcome clearly is not what s 85A of the NTA contemplates. 52 His Honour added that if the contention made by Mr Miller was correct, the Court's discretion to make costs orders would be substantially restricted, something that would be inconsistent with the Full Court's observations in Cheedy v Western Australia (No 2) (2011) 199 FCR 23 at [7]-[9]; [2011] FCAFC 163 as to the Court's discretion to award costs. 53 I consider that the judgment and reasoning of Mansfield J in Far West Coast Native Title Claim, in the passages set out above, appropriately analyse the position of an NTRB in relation to its involvement as a representative of claimants in proceedings such as these under the NTA. An NTRB is, when one considers the objects of the NTA and the particular functions given to an NTRB by the NTA, in an analogous position to that of the Crown, as Mansfield J has said. 54 Like all analogies, the analogy of an NTRB with the Crown should not be drawn too exactly. The real point is that the Parliament plainly intended and expected that an NTRB would be the body that usually and often acts for claimants under the NTA, as indeed it does in most cases. A quick review of native title proceedings in this Court, particularly in relation to major claimant applications, discloses this to be the case. Under s 203BB of the NTA, the facilitation and assistance functions of an NTRB are set out. They include, by subs (1)(b)(i), "to assist … persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings" relating to native title applications. 55 In my view, there can be no clearer statement of the role and function of an NTRB under the NTA and its entitlement to act, by lawyers it employs or engages, in a claimant proceeding like the present involving Oil Basins. It would be odd, not to say perverse, as Mansfield J intimates in the passages cited above, if an occasion for the making of a costs order against a respondent, such as Oil Basins in this case, under s 85A, could not be the subject of recovery by an NTRB. As Mansfield J has pointed out, the costs regime would, in such a case, effectively apply in one direction only, so that respondents who are successful in obtaining a costs order under the costs regime of the NTA against claimants might successfully recover their costs, but claimants represented by an NTRB would be left lamenting in circumstances where a costs order in their favour would otherwise be justifiable. 56 I do not consider that the issue as to whether the KLC is a community legal centre, or the issues concerning application of the regulatory provisions of Western Australian legislation governing legal practitioners and whether Ms Cole's practising certificate at material times was subject to a limiting condition of the type referred to by Oil Basins, are of any relevance to the determination of the matter now before the Court. Nor do I consider that such issues, or issues like them, were relevant to the determination of the costs issue in Far West Coast Native Title Claim by Mansfield J. 57 In those circumstances, I would reject the submission made by Oil Basins that there should either be a reduction of the costs assessment made by the registrar on taxation to zero; or that there be a permanent stay of the costs order.

Should the travel allowances and flights and accommodation expenses be disallowed? 58 Oil Basins, in these circumstances, first challenges items 14, 15, 16, 39, 46, 47 and 50 in the bill of costs. These items claim travel allowances totalling $2,184.50. 59 Oil Basins refers to R 40.18 which provides that the bill of costs must have attached to it, or be accompanied by, a copy of the receipt for each disbursement or, if not paid, a copy of the relevant accounts. It argues that the vouchers provided in this case in relation to these items are remittance advices from the KLC and that no invoice or receipt for the disbursement has been provided. 60 It further argues that even if the remittance advices could be considered to be an invoice or a receipt, the remittance advices do not reveal what the claim is for and do not support that the claim is for a "travel allowance". 61 The claimants say the plain and ordinary meaning of the word "receipt" for the purposes of R 40.18 is the written acknowledgement of the payment of money: see the Australian Concise Oxford Dictionary (4th edition). 62 It notes the remittance advices attached to the bill of costs acknowledge the payment of monies. They show that the KLC paid certain amounts to Ms Jemma Arman and Mr Sandy Chalmers on various dates, and the applicant says when read with paragraphs [26] and [28] of the affidavit of Ms Cole dated 31 May 2013, it is sufficiently clear that the payments made to them were travel allowance payments paid in connection with the work they were doing, as solicitors employed by the KLC, on the Nyikina Mangala native title application at that time. 63 I accept the submissions made on behalf of the claimants and would not review the certificate of taxation, as claimed by Oil Basins, on this basis. 64 Oil Basins, secondly, challenges items 28, 33, 36, 40 and 51 of the bill of costs. These items were in respect of flights and accommodation for attendance by a solicitor at interlocutory hearings, totalling some $2,905.54, of which the registrar allowed $2,641.41. 65 It is accepted by Oil Basins that the Court will only re-exercise the taxing officer's exercise of discretion if it can show he was "manifestly wrong". 66 Oil Basins say that in relation to items 28, 33 and 36, the claim is for travel from Broome to Perth and return for Ms Cole to attend a directions hearing of an interlocutory application. The dates of travel are 12 and 14 May 2013, which appear to have been extended to 16 May 2013. The accommodation is for the nights of 14 and 15 May 2013. The interlocutory application came on for hearing on 15 May 2013. The hearing was, Oil Basins says, only procedural in nature and there was no need for Ms Cole to attend in person, rather than by telephone. It says it may be inferred that the travel was for other purposes. 67 In relation to items 36, 40 and 51, the claim is for travel from Broome to Perth and return for Ms Cole to attend the hearing of an interlocutory application. The dates of travel are 21 and 22 May 2013. The accommodation is for the night of 21 May 2013. The interlocutory application came back before the Court on 22 May 2013. The registrar noted, from the Court file, that the claimants' counsel, Mr Vance Hughston SC, appeared by video link and Ms Cole attended in person. Oil Basins submits there was no need for Ms Cole to come to Perth for the hearing of the interlocutory application and she could have attended by telephone. In any event, it says, she could not communicate with Mr Hughston as senior counsel as he was appearing by video link. 68 The claimants submit that the registrar's decision to allow these items was not manifestly wrong. 69 I have considered the competing submissions. The submissions made on behalf of Oil Basins do not persuade me that the registrar's exercise of discretion on these various expense matters in any way discloses that he was "manifestly wrong". 70 The assessment of such expenses will inevitably involve a degree of judgement. That is why the Court has a taxing assessment process involving an experienced registrar. Questions as to whether or not a claimed expense arose in the course of the proceeding, and not for or in relation to some other extraneous purpose, are matters for the taxing officer. If there were any issues of that nature to be raised, they should have been raised before the taxing officer. If they were, then the registrar's decision has been made and should stand. That must be considered the end of it. Certainly, there is nothing before me to suggest any error, let alone a manifest error, was made in the taxing process. 71 As to the question of Ms Cole's attendance at a directions hearing in Perth, when senior counsel instructed by her was appearing by video conference from the eastern states, then, while one can see that there may be an argument that the instructing solicitor possibly could have adequately participated in the proceeding by a telephone connection to the hearing room from, in this case, Broome, I am not prepared, on the evidence before me, to say that the registrar made a manifest error in deciding that the costs incurred were costs reasonably incurred in relation to the proceeding. 72 In those circumstances, the objections raised on the review application in respect of these various expenses fail.

Watson on behalf of the Nyikina Mangala People v State of Western Australia

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (14)

Cited By (2)