FEDERAL COURT OF AUSTRALIA Booth on behalf of the Kungardutyi Punthamara People v State of Queensland (No 2) [2017] FCA 844 File number(s): QUD 847 of 2016 Judge(s): JAGOT J Date of judgment: 28 July 2017 Catchwords: NATIVE TITLE - costs Legislation: Native Title Act 1993 (Cth) s 85A Cases cited: Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 Date of hearing: Heard on the papers Date of last submissions: 10 July 2017 Registry: Sydney Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Mr T Campbell of Campbell Law Counsel for the Second Respondent: Mr A Preston Solicitor for the Second Respondent: Queensland South Native Title Services Counsel for the Third Respondent: Mr A Tokley SC, Ms S Phillips and Mr A Flecknoe-Brown Solicitor for the Third Respondent: Eddy Neumann Lawyers ORDERS QUD 847 of 2016 BETWEEN: GEOFFREY BOOTH AND OTHERS LISTED IN THE SCHEDULE ON BEHALF OF THE KUNGARDUTYI PUNTHAMARA PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent QUEENSLAND SOUTH NATIVE TITLE SERVICES Second Respondent CLANCY JOHN MCKELLAR AND OTHERS LISTED IN THE SCHEDULE ON BEHALF OF THE WONGKUMARA PEOPLE Third Respondent JUDGE: JAGOT J DATE OF ORDER: 28 JULY 2017 THE COURT ORDERS THAT: 1. The applicant pay the costs of Queensland South Native Title Services and of Clancy John McKellar, Iona Dawn Smith, Ernest (Hope) Ebsworth, Rosemary (Rose) Anne Wilson, Margaret Anne Collins, Sharlene Louise Knight, Archie Alfred Ebsworth, Donald James Dixon, Loretta McKellar, Norman John Hodge, and Jacqueline Elizabeth Hill on behalf of the Wongkumara People in connection with the proceedings, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 On 9 June 2017 I ordered that this proceeding be summarily dismissed on a number of bases including that the proceeding involved an abuse of process (Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638, referred to below as the principal judgment). 2 The remaining issue is costs which is subject to s 85A of the Native Title Act 1993 (Cth), in these terms: (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. (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. 3 The submissions for the applicant as to why no order for costs should be made against the applicant are misconceived. 4 First, s 85A(1) is not qualified by s 85A(2). So much is apparent from the opening words of s 85A(2) "Without limiting the Court's power to make orders under subsection (1)". As a result, the power of the court to make an order for costs is not dependent on the existence of an unreasonable act or omission. 5 Second, and as a result, a costs order is not confined to the additional costs a party may incur by reason of an unreasonable act or omission. The relevant principle remains that costs are compensatory. The appropriate scope of a costs order is to be evaluated on a case-by-case basis having regard to the fundamental compensatory principle. It follows that the questions said to be relevant by the applicant, with their focus on whether the respondents incurred costs above those that ordinarily would be incurred, are inapt. 6 Third, the applicant's submissions fail to recognise the reasons why the proceeding was summarily dismissed. Those reasons are set out in the principal judgment and need not be repeated here. What does need to be said here is that: (1) The submission that the Wongkumara applicant "has come to the proceedings voluntarily" is without merit once the facts as set out in the principal judgment are recognised. The Wongkumara applicant had no choice but to seek joinder as a respondent to this proceeding in the circumstances described in the principal judgment. (2) The fact that the applicant retained counsel in respect of the interlocutory applications for strike out and summary dismissal indicates that the applicant, if it had so wished, could have obtained legal advice before it filed the proceeding. Further, the anthropological report obtained for the applicant, and the questions referred to in it, are inconsistent with the suggestion the applicant lacked the resources to obtain legal counsel before the proceeding was brought. (3) The applicant's commencement of the proceeding and its defence of the applications for strike out and summary dismissal were not reasonable in all of the circumstances, which circumstances were known to the applicant. This does not mean that the applicant's counsel acted inappropriately in making submissions against the interlocutory applications. No doubt counsel acted in accordance with his instructions. The problem is that, in light of the circumstances known to the applicant as set out in the principal judgment, the bringing of the proceeding and the instructions to defend the interlocutory applications were unreasonable. The claim was not properly authorised, the proceeding was otherwise an abuse of process, and was doomed to fail. (4) The fact that the claim was registered is not to the point. It does not affect the fact that the claim was not properly authorised, the proceeding was otherwise an abuse of process, and was doomed to fail. (5) The fact that the applicant consented to orders for joinder does not mean that no costs order in that respect should be made. The only reason the Wongkumara applicant had to apply to be joined was because of the applicant's unreasonable conduct in bringing the proceeding. (6) The applicant knew all relevant circumstances which underpinned the conclusions in the principal judgment. Given that there is no evidence about the legal assistance the applicant had, it is difficult to accept the submission that the applicant had no legal assistance at an earlier time than claimed having regard to the content of the anthropological report. The way in which that report avoided the expressly asked question of the proper constitution of the claim group suggests that the framing of the application was a deliberate attempt to avoid the inevitable consequences of the historical circumstances of which the applicant was well aware. (7) There can be no "chilling effect" from a costs order being made in respect of a proceeding which should never have been brought given the unique history as set out in the principal judgment, the key components of which were undoubtedly known to Geoffrey Booth. (8) It is not possible or appropriate to distinguish between the position of the Booth and Fisher families and other members of the claim group. The knowledge of the Booth and Fisher families, and of Geoffrey Booth in particular, is the knowledge of the applicant. If Queensland South Native Title Services (QSNTS) chooses not to enforce a costs order other than in response to a further application, then that is a matter for QSNTS. It is not a reason to stay a costs order. 7 In short, the conduct of the applicant in bringing this proceeding was unreasonable. In the circumstances disclosed in the principal judgment it involved a manifest abuse of process. The Wongkumara applicant and QSNTS ought not to have been put to the cost of having to file interlocutory applications to have the proceeding dismissed. They should be compensated for the applicant's unreasonable conduct by an order for costs in connection with the proceeding. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 28 July 2017 SCHEDULE OF PARTIES QUD 847 of 2016 Applicant Coral King Stewart Williams Veronica Booth Third Respondent Iona Dawn Smith Ernest (Hope) Ebsworth Rosemary (Rose) Anne Wilson Margaret Anne Collins Sharlene Louise Knight Archie Alfred Ebsworth Donald James Dixon Loretta McKellar Norman John Hodge Jacqueline Elizabeth Hill