Gubbi Gubbi v State of Queensland [2003] FCA 1077

FEDERAL COURT OF AUSTRALIA

Gubbi Gubbi v State of Queensland [2003] FCA 1077 Native Title Act 1993 (Cth) s 85A Federal Court Rules O 22 r 3 Ward v Western Australia (1999) 163 ALR 149 referred to HELENA GULASH ('GUBBI GUBBI #1') and EVE FESL ('GUBBI GUBBI #2') v THE STATE OF QUEENSLAND and OTHERS Nos QG 6083 of 1998; Q 6034A and B of 1999 SPENDER J BRISBANE 8 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 6083 OF 1998; Q 6034A & B OF 1999

BETWEEN: HELENA GULASH ('GUBBI GUBBI #1')

FIRST APPLICANT

EVE FESL ('GUBBI GUBBI #2')

SECOND APPLICANT

AND: THE STATE OF QUEENSLAND and OTHERS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 8 OCTOBER 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: The costs of each motion to strike out are reserved. 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 6083 of 1998; Q 6034A & B OF 1999

BETWEEN: HELENA GULASH ('GUBBI GUBBI #1') EVE FESL ('GUBBI GUBBI #2')

APPLICANT

EVE FESL ('GUBBI GUBBI #2')

SECOND APPLICANT

AND: THE STATE OF QUEENSLAND and OTHERS

RESPONDENT

JUDGE: SPENDER J

DATE: 8 OCTOBER 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 I am presently concerned with the question of what costs order, if any, should be made in relation to strike-out proceedings brought by Lynette Johannessen, Alexander Davidson and Margaret Pitt-Lythgoe by way of notice of motion dated 24 April 2003 in relation to Gubbi Gubbi #1, and notices of motion dated 30 May 2003, 29 April 2003 and 30 May 2003, respectively, in relation to Gubbi Gubbi #2. A notice of discontinuance was filed in respect of the strike out applications. 2 Section 85A of the Native Title Act 1993 (Cth) applies to proceedings in relation to applications filed in the Federal Court that relate to native title. The strike-out proceedings brought by the respondents clearly relate to the native title applications of the Gubbi Gubbi people in both matters. 3 Section 85A provides as follows: 'Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal 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, the Court may order the first-mentioned party to pay some or all of those costs.' 4 As Lee J noted in Ward v Western Australia (1999) 163 ALR 149 at par 33, the function of s 85A is to remove any ground for anticipation or expectation that costs would follow the event, as would be the case in ordinary Federal Court litigation. Again, in ordinary Federal Court litigation the Federal Court Rules provide for the incidence of costs where a notice of discontinuance has been filed: O 22 r 3. 5 The power to award costs in proceedings that relate to native title is dependent on a conclusion that the incurring of costs by another party has been brought about as a result of an unreasonable act or omission. 6 The material before the Court suggests that there is a body of evidence supporting the contention that the applicants' claim is not tenable. Notwithstanding that evidence, the respondents appear to have accepted the view that a strike-out application was not an appropriate way of dealing with the question of the claims of the applicants. This aspect of the matter continues to be a live issue in the proceedings. In those circumstances it was quite unlikely that the Court would have made an order against the applicants on the strike-out motions. 7 The respondents to the strike-out applications were, and are, not legally represented, and the question of whatever costs might properly be the subject of any costs order is therefore somewhat moot. 8 Rather than order that there be no order as to costs, I think the better course is simply to reserve the costs of the strike-out applications for further consideration, after the final hearing of the native title applications and the determination of the issues which were sought to be agitated in the strike-out application.