Davidson v Fesl (No 2) [2005] FCAFC 274 (23 December 2005)

Last Updated: 10 January 2006

FEDERAL COURT OF AUSTRALIA

Davidson v Fesl (No 2) [2005] FCAFC 274

ABORIGINES – native title – costs – discretion to award costs – motion for leave to appeal – motion without merit – serving no practical benefit – costs awarded





Native Title Act 1993 (Cth) s 85A







Lardil People v State of Queensland [2001] FCA 414; (2001) 108 FCR 453 cited
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 cited

Ward v Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305 cited

Donnelly v Registrar of National Native Title Tribunal [2000] FCA 1814 cited










ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER v EVE DOREEN FESL AND STATE OF QUEENSLAND
QUD 56 OF 2005




FRENCH AND FINN JJ
23 DECEMBER 2005
PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER APPLICANTS
AND:	EVE DOREEN FESL FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT JINIBARA PEOPLE, TONY DALTON AND OTHERS THIRD RESPONDENT
JUDGES:	FRENCH AND FINN JJ
DATE OF ORDER:	23 DECEMBER 2005
WHERE MADE:	PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The Applicants pay the First and Second Respondents’ costs of the motion for leave to appeal against the decision of Spender J given on 22 February 2005.

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	QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER APPLICANTS
AND:	EVE DOREEN FESL FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT JINIBARA PEOPLE, TONY DALTON AND OTHERS THIRD RESPONDENT

JUDGES:	FRENCH AND FINN JJ
DATE:	23 DECEMBER 2005
PLACE:	PERTH (HEARD IN BRISBANE)

REASONS FOR JUDGMENT ON COSTS

1 On 30 August 2005 the Full Court, then comprising French, Finn and Hely JJ, dismissed an application for leave to appeal against a judgment of Spender J given on 22 February 2005. The parties were given leave to make submissions on the question of costs and, in particular, whether any costs order in favour of the respondents should be taxed as one set between all or some of them. Hely J died on 1 October 2005. The remaining members of the Court make this decision by consent of the parties.

2 The application for leave to appeal concerned a native title determination application in which Dr Doreen Fesl alone was named as applicant. It was brought on behalf of the Gubbi Gubbi People. Dr Fesl was one of the members of the native title claim group named in the application.

3 In October 2004 the applicants for leave to appeal filed a motion seeking to replace Dr Fesl as an applicant. In November 2004 Dr Fesl sought leave to discontinue the application. Both motions came before Spender J on 19 November 2004 and on 22 February 2005 he gave Dr Fesl leave to discontinue the proceedings.

4 The applicants for leave to appeal sought to have his Honour’s decision giving leave to Dr Fesl to discontinue the application set aside and their motion for her replacement remitted for consideration by his Honour. The Court, for reasons it published on 30 August 2005, was of the opinion that the practical considerations in the case supported the proposition that no substantial injustice would be suffered if leave were refused. His Honour had had regard to practical considerations when he pointed to the wide diversity of opinion as to what was the correct claimant group and serious disagreements concerning its identification. The definition of the claim group in the discontinued application was curiously constrained. While it was so constrained questions of authorisation dependent upon it could never satisfactorily be resolved.

5 Counsel for the respondents at the hearing when the proposed orders were announced sought an order for costs. Counsel for the applicants resisted on the basis of s 85A of the Native Title Act 1993 (Cth) (the Act). The Court was of the opinion that there was no demonstrable benefit to indigenous interests flowing from the bringing of the application for leave. The Court expressed the view that collateral litigation of the kind engaged in by the applicants does not serve the purposes of the Act. Nevertheless the parties were allowed to make written submissions on the question of costs. They were also invited to address the question whether, given the identity of interests between the respondents the costs, if awarded against the applicants, should be taxed as one set as between all or some of the respondents. The first and second respondents made submissions, as did the applicants.

Statutory Framework

6 Section 85A of the Act provides:

‘85A 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.’

Whether a Costs Order Should be Made

7 The proceedings to which s 85A of the Act applies are those in respect of which the Federal Court exercises jurisdiction pursuant to s 81 of the [2001] FCA 414; Act – Lardil People v State of Queensland (2001) 108 FCR 453 at [157]. Section 81 confers on the Court jurisdiction to hear and determine ‘applications filed in the Federal Court that relate to native title’. The application for leave to appeal in this case arose out of a native title determination application pending in the Court and the decision to give leave to discontinue that application. In the circumstances, s 85A applies to the application for leave to appeal.

8 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. That is, a successful litigant receives its costs in the absence of circumstances justifying some other order – Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234-5.

9 The language of s 85A lies against the application of that ordinary rule, developed by case law, in relation to the discretion under general provisions conferring power to award costs. It does not itself confine the Court’s power but:

‘... remove[s] any ground for anticipation or expectation that unless cause is shown for some other order to be made costs will usually follow the event.’
Ward v Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305 at 312 [33] (Lee J)

The starting point, as Lee J observed, is that each party would bear its own costs. One basis upon which the Court may order a party to bear costs is that the party has engaged in unreasonable conduct of the kind caught by s 85A(2). But that provision is expressly said not to limit the Court’s powers to make orders under s 85A(1).

10 In Donnelly v Registrar of National Native Title Tribunal [2000] FCA 1814, Lindgren J dismissed a motion for leave to appeal an interlocutory order of Hely J. His Honour said (at [17]):

‘It seems to me appropriate that Mr Donnelly pay the Minister’s costs of the motion for leave to appeal. Mr Howard of counsel has said everything that could be said in favour of the motion for leave to appeal, but in my view the case clearly does not warrant the granting of leave. Indeed, the fact that some wastage of time and money has been caused by the present application is indicated by the fact that Mr Donnelly has, in the meanwhile, obtained leave to amend the application – a far more productive course for him to follow in my respectful opinion.’

11 The first and second respondents have made submissions seeking an order for costs against the applicants for leave in this case. No submission was filed on behalf of the third respondents. The applicants filed submissions in response.

12 It suffices to say that this is a case in which the motion was not only without merit. It seemed to serve little, if any, practical purpose. In the circumstances the first respondent and the State should be entitled to their costs. The third respondents did not seem to have any distinct interest to pursue in resisting the motion and it does not seem appropriate that they should be entitled also to costs.

Conclusion

13 For the preceding reasons the applicants will be required to pay the costs of the first and second respondents.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French and Finn.

Associate:
Dated: 23 December 2005

Counsel for the Applicants:	Mr J Griffin QC
Solicitor for the Applicants:	Dillon Lawyers
Counsel for the First Respondent:	Mr M Byrne
Counsel for the Second Respondent: Solicitor for the Second Respondent: Counsel for the Third Respondent:	Mr G Hiley QC with Ms H Bowskill Crown Law Mr AM Preston (Pro Bono)
Date of Written Submissions:	8 and 18 September 2005
Date of Judgment on Costs:	23 December 2005