Davidson v Fesl (No 2)

Case [2005] FCAFC 274

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) 108 FCR 453 cited
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 cited

Ward v Western Australia (No 2) (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…

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Details
AGLC
Davidson v Fesl (No 2) [2005] FCAFC 274
Case
[2005] FCAFC 274
Decision Date

CaseChat Overview and Summary

Davidson v Fesl (No 2) involved a dispute concerning native title and legal costs. The case was heard in the Federal Court of Australia, which was asked to decide on a motion for leave to appeal against a decision regarding native title claims. The central issue was whether the applicants were entitled to proceed with their appeal and, if not, who should bear the costs associated with the motion.

The court found that the applicants' motion for leave to appeal was not only without merit but also seemed to serve little, if any, practical purpose. The first and second respondents, who were the parties opposing the motion, were therefore entitled to be awarded their costs. The third respondents, who did not appear to have a distinct interest in resisting the motion, were not considered appropriate recipients of costs.

In conclusion, the court ruled that the applicants, who were the ones initiating the motion for leave to appeal, must bear the costs of the first and second respondents. This decision underscores the importance of the merit and practical purpose of legal motions in determining whether a party should be liable for the associated costs.

ORDERS:
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.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH AND FINN JJ
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 For the preceding reasons the applicants will be required to pay the costs of the first and second respondents.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH AND FINN JJ

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