Tullock v State of Western Australia [2010] FCA 351

FEDERAL COURT OF AUSTRALIA Tullock v State of Western Australia [2010] FCA 351 Citation: Tullock v State of Western Australia [2010] FCA 351

Parties: LES TULLOCK, FRIDAY JONES, ELISABETH WONYABONG and CYRIL BINGHAM v STATE OF WESTERN AUSTRALIA

File number: WAD 248 of 2007

Judge: GILMOUR J

Date of judgment: 13 April 2010

Catchwords: NATIVE TITLE – costs – application by applicant for costs against the applicant on the motion pursuant to s 85A of the Native Title Act 1993 (Cth) – whether costs incurred by unreasonable act or omission of applicant on the motion – motion without merit – costs awarded on indemnity basis

Legislation: Native Title Act 1993 (Cth) s 61, 81, 85A Federal Court Act 1976 (Cth) s 43

Cases cited: Davidson v Fesl (No 2) [2005] FCAFC 274 De Rose v South Australia [2005] FCAFC 137 O'Mara v Minister for Lands [2008] FCA 84 Reid v South Australia [2007] FCA 1479 Ward v Western Australia (1999) 93 FCR 305

Date of submissions: 5 August 2009

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 29

Counsel for the Applicant: Mr G Irving

Solicitor for the Applicant: Central Desert Native Title Services

Counsel for the Applicant on the motion: Mr Shayne Daley

Solicitor for the Applicant on the motion: Shayne Daley & Associates

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION WAD 248 of 2007

BETWEEN: LES TULLOCK, FRIDAY JONES, ELISABETH WONYABONG and CYRIL BINGHAM

Applicants

AND: STATE OF WESTERN AUSTRALIA

Respondent

Reynold Allison

Applicant on the motion

JUDGE: GILMOUR J

DATE OF ORDER: 13 April 2010

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The applicant on the motion pay the costs of the applicants in relation to the motion dated 21 November 2008, including the question of costs, on an indemnity basis to be taxed and payable forthwith. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION WAD 248 of 2007

BETWEEN: LES TULLOCK, FRIDAY JONES, ELISABETH WONYABONG and CYRIL BINGHAM

Applicants

AND: STATE OF WESTERN AUSTRALIA

Respondent

Reynold Allison

Applicant on the motion

JUDGE: GILMOUR J

DATE: 13 April 2010

PLACE: PERTH

REASONS FOR JUDGMENT 1 These reasons relate to the applicants' claim to costs on an indemnity basis against the applicant on the motion in respect to his notice of motion dated 21 November 2008 which was dismissed on 5 August 2009.

BACKGROUND 2 On 14 December 2007, Les Tullock, Friday Jones, Elisabeth Wonyabong and Cyril Bingham (the Tarlpa applicant) filed in the Federal Court of Australia an application under s 61 of the Native Title Act 1993 (Cth) (the Act) for a Determination of Native Title (the Tarlpa application) . 3 The notice of motion filed on 21 November 2008 by Mr Reynold Allison (the applicant on the motion) sought orders to the following effect: (a) That Nimpurru/Spider be removed from the list of apical ancestors in the Tarlpa application; (b) That the descendants of Nimpurru/Spider be removed as members of the Tarlpa Native Title claim group; (c) That Reynold Allison be removed as a member of the Tarlpa claim group; and (d) That Reynold Allison be joined as a respondent to the Tarlpa application. 4 The notice of motion was supported by an affidavit sworn by Mr Allison on 18 November 2008. Mr Allison, by virtue of his descent from Nimpurru Spider, is a member of the Tarlpa claim group; however, he is not an applicant to the Tarlpa application: s 61(2)(d). 5 By way of letter, dated 26 November 2008, which was copied to the Tarlpa applicant's legal representative, the respondent advised Mr Allison's legal representative, Shayne Daley & Associates, that the relief sought by Mr Allison in his notice of motion would constitute an amendment to the Tarlpa application; and, in the absence of any authorisation of the amendment by the Tarlpa native title claim group, it was the respondent's view that the motion must fail. Further, the respondent pointed out that Mr Allison's affidavit evidence consisted mostly of hearsay which, in its view, should not be admitted into evidence. 6 Mr Allison's notice of motion first came before the Court during the Regional Directions Hearing held on 8 December 2008. The Court made the following orders on the motion. 1. The applicant to the Motion file any further affidavits by 12 January 2009. 2. The applicant file and serve an outline of written submissions on or before 12 January 2009. 3. On or before 28 February 2009 the respondent file and serve any affidavits in reply together with a written outline of submissions. 4. There be liberty to apply. 5. Costs be reserved. 7 On 13 January 2009, the applicant to the motion filed and served, by way of fax, an outline of written submissions; six affidavits were also faxed to the Tarlpa applicant's legal representative under cover of a letter from Shayne Daley & Associates, which advised that further affidavits would be filed. A total of 17 affidavits were ultimately sworn. Some, but not all of those affidavits were filed in the Court; all but one were served on the Tarlpa applicant. 8 On 3 March 2009, the Tarlpa applicant filed and served the Tarlpa submissions in response to the motion to the effect that the motion to remove Nimpurru/Spider, his descendants and Mr Allison from the claim group description in the Tarlpa application raised a question of law that has already been settled: the motion, if granted, would effect an amendment to the Tarlpa application which, in the absence of authorisation by the native title claim group, is not permitted under the Act. 9 In respect of the motion to join Mr Allison as a respondent, the Tarlpa applicant did not take issue with the contention that the Court has discretionary power to make such an order, but it submitted that the only question was whether or not Mr Allison was the appropriate person to join as a respondent and that the affidavit evidence filed in support of the motion was not relevant to that issue. 10 The Tarlpa applicant submitted that Mr Allison was not an appropriate person to be joined as a respondent. The factual foundation for that submission is set out in the Tarlpa submissions filed 4 August 2009 and included: 1. the failure of Mr Allison, following Notification of the Tarlpa Application by the Native Title Registrar, on 30 July 2008, to apply for joinder within the period specified in the Notice; and, the absence of any evidence to suggest that Mr Allison was unaware of that Notification; 2. the failure of Mr Allison to properly prosecute at all, or in a timely manner, the previous native title claims in which he was an applicant such that those native title claims were eventually dismissed by the Court, on its own motion; 3. the apparent coincidence between the dismissal of those two native title claims, on 13 October 2008, and the subsequent filing of Mr Allison's Notice of Motion; 4. the apparent misleading behaviour of Mr Allison, or those acting on his behalf, when obtaining affidavit evidence in support of his notice of motion from old and illiterate indigenous deponents; 5. the fact that Mr Allison and his legal representative allowed this matter to "fall into abeyance", following the parties compliance with the Court's Orders of 8 December 2009; 6. the failure of Mr Allison, through his legal representative, to obtain the affidavit evidence from Dr Tony Doulman, prior to Dr Doulman's departure for Thailand; 7. the failure of Mr Allison, or his legal representative, to serve on the Tarlpa Applicant, and on the Respondent, copies of his Minute of Proposed Orders, which was filed in the Court prior to the directions hearing on 29 July 2009, notwithstanding requests from the Respondent as to what orders were being sought by Mr Allison; 8. the failure of Mr Alison to correct in a timely manner the unidentified "errors" (which were asserted at the Directions Hearing on 29 July 2009) in the affidavits filed in support of Mr Allison's Notice of Motion in November 2008 and January 2009. 11 On 17 March 2009, the respondent filed and served its outline of submissions. It submits that because Mr Allison is not an "applicant" and not even a member of the collective "applicant", he lacks any basis upon which to deal with any matters arising under the Act in relation to the Tarlpa application. The respondent disputed Mr Allison's submission that Order 13 r 2 of the Federal Court Rules permitted the orders sought by Mr Allison on the grounds that the description of the claim group in the Tarlpa application was intentional, and authorised by the claim group, and could therefore not be described as a "defect in the proceeding" to which O13 r 2 is directed. Accordingly, the respondent submits that the motion should be dismissed. 12 Subsequent to the filing of the respondent's outline of submissions, no further action was taken by Mr Allison to progress his motion until after the Court enquired, on or around 20 May 2009, whether or not the parties wished the Court to determine the motion on the papers. 13 On 22 June 2009, Shayne Daley & Associates wrote to the Tarlpa applicant and the respondent advising that the matter had fallen into abeyance but that instructions had been received to seek a suitable listing date, in late July, on the assumption that there would be some argument before the court regarding the motion. Mr Daley advised that senior counsel had been engaged for that hearing and that he intended to file a further affidavit, from Dr Tony Doulman within the next two weeks. No such affidavit was filed. 14 The motion was subsequently listed for a directions hearing on 29 July 2009. 15 By way of a minute of proposed orders, which was filed on a date unknown to the Tarlpa applicant because the minute was not served on either the Tarlpa applicant or the respondent, Mr Allison sought leave to file further affidavit evidence in relation to the motion; and, orders which would allow for a further round of submissions. 16 The Tarlpa applicant opposed this on the grounds that Mr Allison was, in effect, seeking orders in the same terms as those that had been made by the Court on 8 December 2008. 17 In the circumstances, the Court adjourned the directions hearing to 5 August 2009 and made an order requiring Mr Allison to file and serve an affidavit explaining the reasons why that which ought to have been done had not been done since December 2008. No such affidavit was filed. 18 On 4 August 2009, Shayne Daley & Associates advised by faxed letter that instructions had been received not to proceed further with the motion. That letter enclosed a minute of proposed orders to the effect that the motion be dismissed and that there be no order as to costs. The legal representative of the Tarlpa applicant responded to that letter, the following morning, advising that it was not possible to take instructions on the proposed orders prior to the following morning when the matter was listed before the Court, and that a further set of submissions and an affidavit in support had already been filed on behalf of the Tarlpa applicant, in response to Mr Allison's previous minute of proposed orders, seeking orders that the motion be dismissed and that costs be awarded in favour of the Tarlpa applicant. 19 At the directions hearing, on 5 August 2009, the Court dismissed Mr Allison's motion and ordered that he file and serve an outline of submissions on the question of costs on or before 19 August 2009 and that the Tarlpa applicant file and serve an outline of submissions on or before 2 September 2009. No such submission was filed by Mr Allison notwithstanding that the relevant Order was made at the request of Mr Allison's legal representative with a view to having the Court determine the question of costs on the papers. The Tarlpa applicants filed submissions on costs.

STATUTORY FRAMEWORK IN RESPECT OF COSTS IN NATIVE TITLE MATTERS 20 Section 81 of 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 Mr Allison arose out of a native title determination application that is pending in the Court. In such circumstances, s 85A of the Act applies to the question of costs. 21 Where the Court has a discretion, unfettered by any legislative presumption, to award costs, as is the case with s 43 of the Federal Court Act 1976 (Cth), it is accepted that ordinarily costs follow the event . However, s 85A of the Act provides that unless the Court orders otherwise, each party to a proceeding must bear his or her own costs. 22 Section 85A(2) describes one circumstance in which the Court may decide otherwise; namely, where 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. In such circumstances the Court may order the first-mentioned party to pay some or all of those costs. However, it has been held that s 85A(2) 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 simply "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". 23 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 v Western Australia (1999) 93 FCR 305: · 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]). · 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]). · 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 the discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the existence of special circumstances (at [35]). · Section 85A(2) of the NT 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]). · 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]). 24 Since Ward, there have been a number of decisions in this Court where such an order has been made. For example, in Davidson v Fesl (No 2) [2005] FCAFC 274 at [12], the Full Court made an order for costs in circumstances where the motion before the Court was held to be not only "without merit", but "seemed to serve little, if any, practical purpose". 25 However, it is not proper to use the power to award costs to punish either a successful or unsuccessful party or use it to operate as a deterrent to other would-be applicants: Reid v South Australia [2007] FCA 1479 at [53]-[54] per Finn J.

THE TARLPA APPLICANT'S SUBMISSIONS AS TO COSTS 26 The Tarlpa applicant refers to, adopts and relies upon the previous Tarlpa submissions in this matter. In light of the undisputed facts, set out in those submissions and the matters enumerated above, the Tarlpa applicant submits that Mr Allison's motion was without merit and served little, if any practical purpose. Moreover, the motion was discontinued, without reason, but no doubt because that course was considered to be in Mr Allison's own best interests. Accordingly, the Tarlpa applicant submits that the Court should exercise its discretion to award costs, on an indemnity basis, in favour of the Tarlpa applicant. 27 The Tarlpa applicant further submits that, as in O'Mara v Minister for Lands [2008] FCA 84 (at [5]), the Court should exercise its discretion, under Order 62 rule 3 subrule (ii) and subrule (iii) of the Federal Court Rules, to order that the costs of the Tarlpa applicant shall be payable forthwith and that the Tarlpa applicant shall be entitled to have its bills taxed forthwith. 28 I accept these submissions. I would add that the motion was, as a matter of law, without merit. 29 In these circumstances there will be an order that the applicant on the motion pay the costs of the Tarlpa applicant, in relation to the motion dated 21 November 2008, including the question of costs,on an indemnity basis to be taxed and payable forthwith. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 13 April 2010