Saunders on behalf of the Bigambul People v State of Queensland (No 3) [2021] FCA 444

Procedural Posture

Native Title Compensation Application; Costs Application / Costs Determined on the Papers After the Compensation Application Was Struck Out

Legal Issues

1. 1 ['Whether there should be any order as to costs after the compensation application was struck out.' 'Whether QSNTS should obtain an order that David Stevenson pay its costs of the proceeding.' "Whether the Indigenous respondents should obtain indemnity costs against the applicant and a personal costs order against the applicant's lawyer." "Whether the applicant's or solicitors' conduct was unreasonable so as to warrant departure from the usual position under s 85A(1) of the Native Title Act 1993 (Cth)." 'Whether costs should be awarded to respondents who became parties after the unreasonable conduct occurred.']

Ratio Decidendi

Although filing the patently defective Form 4 compensation application was unreasonable conduct by the applicant and the applicant's solicitors, that unreasonable conduct continued only until the first case management hearing, when the defect was conceded and leave to amend was foreshadowed. QSNTS and the Indigenous respondents became parties only after that time, and the later applications for leave to amend and for a request under s 83A of the Native Title Act 1993 (Cth) were reasonably arguable or novel and arguable. The circumstances therefore did not warrant departure from the usual position under s 85A(1) that each party bear its own costs.

Court Disposition

No order as to costs.

Orders

• ['There be no order as to the costs of the proceeding.']