Oil Basins Limited v Watson [2014] FCAFC 154

Oil Basins Limited v Watson [2014] FCAFC 154

The Full Court dismissed the appeal because the primary judge did not make any House v The King error in ordering costs and indemnity costs. It was open to find that Oil Basins acted unreasonably for s 85A(2) purposes by putting connection in issue after it knew the State had assessed the claimants' evidence, obtained anthropological and senior counsel advice, and considered the claim likely to succeed, while all other respondents accepted connection. Oil Basins had no own anthropological evidence and no reasonable basis to expect that cross-examination of Dr Palmer would defeat connection. It was also open to treat Oil Basins' later abandonment of its connection challenge as unreasonable...

Jurisdiction
Australia
Judgment Date
17 November 2014
Procedural Posture
Appeal From Costs Orders in Native Title Proceedings / Full Court Appeal From Watson V State of Western Australia (no 3) [2014] FCA 127
Outcome
Appeal dismissed with costs.
Legal Topics
['costs Discretion Under S 85 a Native Title Act 1993 (cth)' 'unreasonable Conduct in Native Title Proceedings' 'indemnity Costs' 'consent Determination' 'connection Evidence' 'state Role in Assessing Native Title Connection Evidence' 'appellate Review of Discretionary Costs Orders']
['native Title' 'costs' 'federal Civil Procedure'] ['costs Discretion Under S 85 a Native Title Act 1993 (cth)' 'unreasonable Conduct in Native Title Proceedings' 'indemnity Costs' 'consent Determination' 'connection Evidence' 'state Role in Assessing Native Title Connection Evidence' 'appellate Review of Discretionary Costs Orders']

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Procedural Posture

Appeal From Costs Orders in Native Title Proceedings / Full Court Appeal From Watson V State of Western Australia (no 3) [2014] FCA 127

Legal Issues

  1. 1 ['Whether the primary judge erred in finding it unreasonable for Oil Basins to put connection in issue after the State and other respondents were prepared to proceed by consent determination.' "Whether the primary judge erred in finding it unreasonable for Oil Basins subsequently to concede the claimants' case on connection without adequate explanation." "Whether Oil Basins had a reasonable basis to contest connection by cross-examining the claimants' expert and making submissions without obtaining its own anthropological evidence." "Whether the matters relied on by Oil Basins amounted to significant deficiencies in the claimants' connection case." "Whether any factual errors about the State's advice or Oil Basins' beliefs caused the costs discretion to miscarry."]

Ratio Decidendi

The Full Court dismissed the appeal because the primary judge did not make any House v The King error in ordering costs and indemnity costs. It was open to find that Oil Basins acted unreasonably for s 85A(2) purposes by putting connection in issue after it knew the State had assessed the claimants' evidence, obtained anthropological and senior counsel advice, and considered the claim likely to succeed, while all other respondents accepted connection. Oil Basins had no own anthropological evidence and no reasonable basis to expect that cross-examination of Dr Palmer would defeat connection. It was also open to treat Oil Basins' later abandonment of its connection challenge as unreasonable...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first to the tenth respondents' costs of the appeal to be taxed, if not agreed."]