Kullilli People v Queensland [1999] FCA 1449 (15 October 1999)

Last Updated: 27 October 1999

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.

"MR KOPPENOL: The Goolburri Land Council does see value in having this matter adjourned.

HIS HONOUR: Does?

MR KOPPENOL: Does see that it would be useful to adjourn this application to 2 September for further mediation. I am instructed that Mr Moore, who is the Chief Executive Officer, will be able to attend that mediation with the requisite authority in respect of funding.

HIS HONOUR: He will have authority to ---

MR KOPPENOL: But that isn't to say to agree to the funding proposal that has been put up.

HIS HONOUR: No, no; but he will ---

MR KOPPENOL: But to settle the matter of funding.

HIS HONOUR: He will have authority to commit the Council to a particular figure. It might not be the figure that the applicants want, but he will go armed with authority from the Council to commit the Council to a maximum figure. Is that the position?

MR KOPPENOL: Yes. Yes."

7 And it was in those circumstances I adjourned the matter over to 10 September 1999 in the expectation that a resolution one way or the other would be arrived at on the funding issue at the resumed mediation on 2 September 1999.

8 On the eve of the mediation of 2 September 1999, the Land Council by its Chairman sent a relatively lengthy letter dated 31 August 1999 to the applicant and to the Court. It is exhibit 1 to Mr Connelly's affidavit filed 10 September 1999. In this letter, the Chairman of the Land Council referred to a meeting held by the governing committee of the Land Council on Friday, 27 and Saturday, 28 August 1999 at which Mr Moore, as Chief Executive Officer, was given the following authority:

"(1) to attend any mediation conference and directions hearing of the Federal Court of Australia on behalf of the Goolburri Aboriginal Corporation Land Council as a Native Title Representative Body;

(2) to accept from the Kullilli people any proper formal application in writing for funding assistance subject to the normal policies and procedures of this land Council regarding assessment of the merits of such application and the approval or non approval of specific budget items being sought in accordance with ATSIC terms and conditions for funding of NTRB bodies;

(3) to remind and advise the Kullilli people or their alleged representatives that the Goolburri Aboriginal Corporation Land Council has never provided any guarantee to any third party regarding debts incurred by the Kullilli and that the matter of repayment of debts incurred by the Kullilli remains a matter directly between the Kullilli and their creditors legal advisors;

(4) to advise the Kullilli people and their alleged representatives that no liability whatsoever will ever be accepted and no native title monies will ever be released to meet any debts incurred by a native title claimant on any retrospective basis ..."

9 The letter covers a number of matters but concludes with the statement that:

"A proper application for funding properly made will be properly considered by the Goolburri Aboriginal Corporation Land Council in the normal way that any other T/O group makes and is assessed on their funding application."

10 It is, I think, plain that the Chairman of the Land Council was in this letter saying that no resolution would be achieved at the mediation on 2 September 1999 and that the Kullilli people could only expect funding from the Land Council if a "proper formal application in writing" was submitted to the Land Council and the Land Council was prepared to make a decision in accordance with established terms and conditions in favour of that application. It is, I think, also clear that the Land Council was not in this letter recording a position only arrived at in that regard at the meeting on 27 and 28 August 1999: as its reference to being prepared to make funding available provided a proper application met the requirements of ATSIC for the funding of native title representative bodies shows the Land Council was restating a position that it had long followed.

11 In any event, it is clear from this letter, in my opinion, that the Land Council's position was that the funding question could only be resolved if and when the Kullilli people submitted an application with detail acceptable to the Land Council. It is also clear from material before me that that position was repeated at the mediation on 2 September 1999 and that in conformity with the Land Council's position, Mr Moore, on 9 September 1999, followed up with his letter of that date, in effect, inviting the Kullilli people to submit a proper application.

12 I do not suggest that there is any basis for finding that Mr Moore acted in bad faith instructing counsel to make the statements made on 6 August 1999. Unfortunately, however, the Land Council's longstanding position, as it seems to me, as evidenced by the letter of 31 August 1999, was that the continuance of the mediation designed and intended by the Court to be a vehicle for the possible resolution of the funding question was doomed not to be able to ever achieve that situation.

13 It therefore seems to me that the Kullilli people can legitimately say that they were misled into thinking that there was point in continuing with the mediation when it was doomed to fail and the only way they could achieve any funding decision from the Land Council was by putting in a further funding application that met the Land Council's requirements and was otherwise acceptable to the Land Council.

14 In these circumstances, costs have been wasted by the Kullilli people in attending the mediation on 2 September 1999 and the Land Council is responsible for that situation occurring, although, as I have said, I do not suggest there was bad faith displayed on the part of those acting for the Land Council in unfortunately allowing that situation to arise as it did on 2 September 1999.

15 The applicant sought costs orders in respect of a considerable number of mediations and Court hearings. It refined its application in the course of argument to costs only of the mediation hearing of 2 September 1999 and the subsequent Court hearing of 10 September 1999. Given the conclusions I have reached as to how the situation arose on 2 September 1999 where the applicant embarked upon a mediation hearing doomed to fail, I think that the proper order is that the Land Council should pay the applicant's costs of the mediation of 2 September 1999.

16 I am not however prepared, having regard to these findings, to make any order against the Land Council for payment of the applicant's costs of the subsequent Court hearing on 10 September 1999. There is not only the factual circumstances that I have already referred to in which the mediation was allowed to continue which are, I think, relevant to the situation on 10 September 1999, but as counsel for the Land Council points out, the hearing of 10 September 1999 would have taken place in any event, irrespective of the mediation, and directions were in fact made that day.

17 There is no basis, in view of the findings I have made, for awarding the costs of the 2 September 1999 mediation hearing to the applicant on anything other than the ordinary basis, so that the only order the Court will make is that the 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.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 20 October 1999

Counsel for the Applicant:	K Feeley
Solicitor for the Applicant:	Connollys Lawyers
Solicitor for the Respondent:	Department of Premier & Cabinet
Counsel for the Goolburri Aboriginal Corporation Land Council:	G Koppenol
Date of Hearing:	15 October 1999
Date of Judgment:	15 October 1999