FEDERAL COURT OF AUSTRALIA
Oil Basins Limited v Watson [2017] FCAFC 103
Appeal from: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 7) [2015] FCA 1404 File number(s): WAD 27 of 2016 Judge(s): NORTH ACJ, DOWSETT AND RARES JJ Date of judgment: 6 July 2017 Catchwords: NATIVE TITLE – costs – whether respondents able to obtain indemnity for legal costs from appellant – whether respondents liable for any legal costs where represented by native title representative body – whether respondents’ solicitor made concession that respondents had no liability to pay legal costs – no such concession made – appeal dismissed. Legislation: Federal Court of Australia Act1976 ss 4, 43
Judiciary Act 1903 (Cth) ss 55A, 55B, 55C
Native Title Act 1993 (Cth) ss 85, 85A, 201B, 203AD, 203B, 203BA, 203BB, 203BC, 203BK, 253
Federal Court Rules 2011 r 4.01
Cases cited: APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322
Australian Workers Union v Bowen (1946) 72 CLR 575
Banco de Bilbao v Sancha [1938] 2 KB 176
Blackall v Trotter (No 1) [1969] VR 939
Brownsea Haven Properties Ltd v Poole Corporation [1958] 1 Ch 574
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
Halliday v Sacs Group Pty Ltd (HCA unreported 23 December 1992)
Halliday v High Performance Personnel Pty Ltd (In Liq) (formerly Sacs Group Pty Ltd) (1993) 113 ALR 637
Hawker v Weston (No 2) [2015] FCA 521
Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750
Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
Inglis v Moore (No 2) (1979) 46 FLR 470
Lawrie v Lawler (2016) 168 NTR 1
Lenthall v Hillson [1933] SASR 31
Marsh v Baxter (No 2) [2016] WASCA 51
New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50
R v The Archbishop of Canterbury ex parte Cobham [1903] 1 KB 289
University of Western Australia v Gray (No 25) (2009) 180 FCR 483
Date of hearing: 5, 8 August 2016 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 138 Counsel for the Appellant: Mr G Cobby Solicitor for the Appellant: Hunt & Humphry Counsel for the Respondents: Mr V Hughston and Mr J Edwards Solicitor for the Respondents: Kimberley Land Council ORDERS
WAD 27 of 2016 BETWEEN: OIL BASINS LIMITED
Appellant
AND: JOHN WATSON
First Respondent
ANTHONY WATSON
Second Respondent
ROBERT WATSON (and others named in the Schedule)
Third Respondent
JUDGES:
NORTH ACJ, DOWSETT AND RARES JJ
DATE OF ORDER:
6 JULY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH ACJ AND RARES J:
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- Oil Basins Limited v Watson [2017] FCAFC 103
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CaseChat Overview and Summary
The court had to determine whether the respondents were liable to indemnify the appellant for the legal costs incurred in the proceedings. The central issue was whether the respondents had any liability to pay the costs to their solicitor, Ms Cole, and if not, whether the Court could still require the respondents to indemnify the appellant for those costs. The court also had to consider whether there was a concession by the respondents' solicitor, Mr Kevin Murphy, that the respondents had no liability to pay any costs to Ms Cole.
The court held that the primary judge did not make the finding that Mr Murphy conceded that the respondents had no liability to pay legal costs. The court further held that the KLC, as a Native Title Representative Body (NTRB), received funding from the Commonwealth to assist persons in native title proceedings, and it was appropriate for the KLC to engage a solicitor or lawyer to represent the respondents. The court found that the KLC incurred costs through Ms Cole's actions and that the respondents were liable to indemnify the appellant for those costs. The court also found that the respondents had a potential liability to pay the costs to Ms Cole if the Commonwealth did not continue to provide funding.
The appeal was dismissed, and the decision of the primary judge was affirmed. The court held that the respondents were liable to indemnify the appellant for the legal costs incurred in the proceedings.
Orders
Orders of the court
1. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NORTH ACJ
In support of this argument, Mr Cobby referred to [27] and [31] in the primary judgment, extracted above at [10], in which the alleged concessions were recorded. The first was made before the Registrar, and the second was made in the course of the review. CONSIDERATION A representative body, such as the KLC, has the statutory facilitation and assistance functions, under s 203BB(1)(b) of the Act, of assisting persons who may hold native title “including by representing them or facilitating their representation … in … proceedings relating to … (i) native title applications”. However, s 203BB(2) requires a representative body not to perform those functions “unless it is requested to do so”. In performing those functions in relation to an application under s 61 of the Act, such as one for a determination of native title, a representative body has to “act in a way that promotes an orderly, efficient and cost-effective process for making such applications”, pursuant to s 203BC(3). The Secretary of the Department administering the Act, on behalf of the Commonwealth, can provide funds to a representative body (s 203C(2)) and the body has to do all things necessary to ensure that payments out of the money were correctly made (s 203DB). Thus, the Act contemplates that a representative body, such as the KLC, would receive funds from the Commonwealth enabling the body to assist an applicant for a determination of native title under s 61 to be legally represented in those proceedings by a solicitor or lawyer on the record, such as Ms Cole or Mr Murphy and by counsel briefed by such a solicitor or lawyer. That is, the Act contemplates that, in the ordinary course, a representative body, in the KLC’s position, would receive a grant of funds from the Commonwealth to enable it to engage a solicitor or lawyer to act, on the Court record, for an applicant and to retain counsel. It followed that there was a chance that the solicitor or lawyer so acting would make a direct claim against the representative body or applicant for which the s 61 application was made, if the Commonwealth did not continue to provide funding, but in the ordinary course no-one needed to be concerned with such a scenario. Moreover, that situation is closely analogous to that when a Minister is represented in his or her official capacity by a solicitor or lawyer acting for the Crown (including when that person retains counsel to appear) in legal proceedings. The practical reality is that Ms Cole was the solicitor on the record, even if employed or retained by the KLC, and the KLC incurred costs (that it paid from money granted to it), through her acting and retaining counsel in the proceedings in which Oil Basins was ordered to pay costs. Oil Basins’ argument on this appeal relied on the alleged finding by the primary judge that Mr Murphy conceded that the respondents had no liability to pay legal costs. However, in addition to [27] and [31] relied upon by Mr Cobby, the primary judge also recorded at [32], extracted above at [10], that the respondents contested the suggestion that Mr Murphy had made an unqualified concession.