Kullilli People v State of Queensland [1999] FCA 1449

FEDERAL COURT OF AUSTRALIA Kullilli People v State of Queensland [1999] FCA 1449 COSTS - Costs order against a non-party - non-party failed to attend a mediation with the appropriate authority as directed by the Court under an order for mediation made with the non-party's agreement - s 43 Federal Court of Australia Act 1976 (Cth) NATIVE TITLE - Costs order against Goolburri Aboriginal Corporation Land Council - s 43 Federal Court of Australia Act 1976 (Cth) Federal Court of Australia Act 1976 (Cth) s 43 KULLILLI PEOPLE v STATE OF QUEENSLAND & OTHERS QG 6028 OF 1998 DRUMMOND J 15 OCTOBER 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 6028 OF 1998

BETWEEN: KULLILLI PEOPLE

Applicant

AND: STATE OF QUEENSLAND & OTHERS

Respondent

JUDGE: DRUMMOND J

DATE OF ORDER: 15 OCTOBER 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The Goolburri Aboriginal Corporation Land Council pay the applicant's costs of and incidental to the mediation conference of 2 September 1999 to be taxed on a party and party basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 6028 OF 1998

BETWEEN: KULLILLI PEOPLE

Applicant

AND: STATE OF QUEENSLAND & OTHERS

Respondent

JUDGE: DRUMMOND J

DATE: 15 OCTOBER 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 The applicant applies on motion for orders under s 43 the Federal Court of Australia Act 1976 (Cth) that the Goolburri Aboriginal Corporation Land Council, a non-party to the application, pay its costs of certain mediation hearings and directions hearings associated with those mediations. The Court's exceptional power to make a costs order against a non-party is not in dispute. 2 There is a long history, stated in Mr Connelly's affidavits filed on behalf of the applicant, of discussions between the Land Council and the Kullilli people concerning the Land Council's funding of the Kullilli people's native title application and various activities of the Kullilli people associated with their native title claim. 3 Back in 1997 the Land Council set aside $30,000 for funding in connection with the Kullilli people's native title claim. This was, however, done on terms which Mr Connelly, the solicitor long retained to act for the Kullilli people, was not prepared to accept. However, there have been other funds provided to the Kullilli people by the Land Council in connection with the claim and activities associated with the claim. It is clear that Mr Connelly has done a large amount of work on the Kullilli people native title claim and that he can only expect to be paid for that past work if the Land Council agrees to pay his fees. It is also clear enough, at least so far as the evidence reveals the present position to be, that Mr Connelly can only expect to be paid for any further work he does on the Kullilli people's claim if the Land Council agrees to fund the Kullilli people's claim and thus Mr Connelly's work. 4 The Court, of course, has no power to order the Land Council to pay any of the Kullilli people's legal fees incurred in connection with its native title claim. But on 22 June 1999, with the concurrence of both the representative of the Land Council then present and the representative of the applicant, I ordered that the parties attend a mediation conference to be held before a Deputy District Registrar of this Court with a view to trying to resolve the question of funding of the Kullilli people's claim. 5 That question, as I have already indicated, involved the question of what payment, if any, should be made by the Land Council in respect of work done in the past by Mr Connelly's firm on the claim and what payment arrangements should be made to remunerate Mr Connelly for any future work. Mediation was held on 29 July 1999 and the position reached was that while there was no agreement arrived at on the funding issue, the Deputy District Registrar recommended that a new budget be proposed by the Kullilli people and submitted to the Land Council. 6 The matter came back before me in accordance with directions given on 22 June on 6 August 1999. On that day, the Land Council was represented by counsel instructed by its chief executive officer, Mr Moore. In the course of the discussion on that day, I observed that, while resolution of the funding issue had not been achieved, the mediation should be allowed to continue. Counsel for the Land Council agreed with that suggestion. As I say, he was instructed by Mr Moore, who was then present in Court. When I asked counsel for the Land Council what his suggestion was in relation to the unresolved funding mediation, this exchange took place.