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	Australian Indigenous Law Reporter

Court and tribunal Decisions - Australia

Kullilli People v State of Queensland

Federal Court of Australia (Drummond J)

15 October 1999

[1999] FCA 1449

Native title — costs — cost order against a non-party — Federal Court of Australia Act 1976 (Cth) s 43

Facts:

The Kullilli people were applicants in a native title claim. The Goolburri Aboriginal Corporation Land Council, a non-party to the application, had set aside funds for it, albeit on terms unacceptable to the solicitor acting for the Kullilli people. The issue remained unresolved following mediation and the Land Council successfully sought before the court an adjournment of proceedings for the purposes of further mediation, suggesting that a resolution would then be possible. Shortly before mediation, the Chairman of the Land Council corresponded with the applicant and the Court, stating that the Land Council would consider an application for funding that was made properly. The Kullilli people consequently applied on motion under s 43 of the Federal Court of Australia Act 1976 (Cth) for an order that the Land Council pay its costs for the further mediation and subsequent court hearing.

Held:

1. A reading of the Chairman’s letter reveals that no resolution would have been achieved at the resumed mediation: at para [10] of the judgment.

2. Although there was no evidence of bad faith in the suggestion by the Land Council that resolution of the funding issue would be possible at mediation, the Kullilli people had been misled into thinking that there was sufficient reason to continue with the mediation when it was doomed to fail. As a result, the Land Council should pay the applicant’s costs for the mediation conference: at paras [12], [13].

3. Because the subsequent court hearing would have occurred irrespective of the mediation, and directions were made on that day, no order should be made against the Land Council for payment of the applicant’s costs for that hearing: at para [16].

4. There is no basis for awarding the costs of the mediation to the applicant on anything other the ordinary basis, so the Land Council is to pay the applicant’s costs to be taxed on a party and party basis. At para [17].