Windbox Pty Ltd v Daguragu Aboriginal Land Trust (No 4) - [2020] NTSC 52

CITATION:Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors (No 4) [2020] NTSC 52
PARTIES:WINDBOX PTY LTD (ACN 007 419 641)

v
DAGURAGU ABORIGINAL LAND TRUST
and
CENTRAL LAND COUNCIL
and
JACT PASTORAL PTY LTD
and
LESLIE, ZEBB RAYMOND
and
ROWBOTTOM, KYLIE DANIELLE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:11 of 2018 (21840850)
DELIVERED:  17 August 2020
WRITTEN SUBMISSIONS:            5, 22 and 26 June 2020
JUDGMENT OF:  Hiley J

CATCHWORDS:
COSTS – Indemnity costs – Principles – Unsuccessful allegations of fraud or serious misconduct – Making or continuing a hopeless claim – Failure to comply with Practice Direction 6 of 2009 – Failure to comply with rules and orders – Common enough features of civil litigation – Matters not “special” or “unusual”
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 19(6)
Corporations Act 2001 (Cth)
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177, BAE Systems Australia Ltd v Rothwell (2013) 275 FLR 244, Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd (No. 2) [2017] NTSC 25, Cleary Bros (Parramatta) Pty Ltd v Commonwealth Bank of Australia [2009] ACTSC 72, Colgate-Palmolive Company v Consumers (1993) 46 FCR 225, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, Golotta v Incroft Pty Ltd [2001] NTSC 90, Hamod v New South Wales (2002) 188 ALR 659, Laminex Group Pty Ltd v Catford (Costs) [2019] NTSC 3, Mango Boulevard Pty Ltd v Spencer [2008] QCA 392, Simonetto and Simonetto v Dick [2014] NTCA 4, Spadaccini v Grice (2012) 32 NTLR 1, Spry v McKenzie (No. 2) [2019] NTSC 57, Steicke v Pederick (No. 2) [2020] SASCFC 13, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2019] NTSC 47, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2020] NTSC 21, referred to
Gino Dal Pont, Law of Costs (4^th Edition)
Michael Grant, Civil Procedure Northern Territory (Presidian Legal Publications)
REPRESENTATION:
Counsel:
Plaintiff:A Harris QC, M Barnett and S Heidenreich
1^st & 2^nd Defendants:                  C Young
3^rd, 4^th & 5^th Defendants:            A Wyvill SC and H Baddeley
Solicitors:
Plaintiff:Gardiner and Associates / Povey Stirk
1^st & 2^nd Defendants:                  Central Land Council
3^rd, 4^th & 5^th Defendants:            Ward Keller
Judgment category classification:    A
Judgment ID Number:  Hil2014
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors (No 4) [2020] NTSC 52
No. 11 of 2018 (21840850)
BETWEEN:

WINDBOX PTY LTD (ACN 007 419 641)

Plaintiff

AND:

DAGURAGU ABORIGINAL LAND TRUST

First Defendant

AND:

CENTRAL LAND COUNCIL

Second Defendant

AND:

JACT PASTORAL PTY LTD

Third Defendant

AND:

ZEBB RAYMOND LESLIE

Fourth Defendant

AND:

KYLIE DANIELLE ROWBOTTOM

Fifth Defendant

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 17 August 2020)
Introduction

Following the Court’s decision in Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors[1] (Windbox (No 3)) the Court ordered the plaintiff to pay the third, fourth, and fifth defendants’ (JACT’s) costs of the proceedings including any reserved or adjourned costs. JACT has sought indemnity costs for all of their costs, and an order that the costs are certified fit for two counsel.
The parties have provided detailed written submissions and agreed for me to decide these applications on the papers. No objection has been made to me certifying that the matter was fit for two counsel to be briefed, and indeed both the plaintiff and JACT were represented by two sometimes three counsel during the trial. Accordingly, I certify that the matter was fit for two counsel.
In short, the plaintiff was unsuccessful against all of the defendants. Although the plaintiff’s initial and primary aim was to retain, renew or obtain the grant of the three Windbox grazing licenses over the first defendant’s land, that aim was abandoned when the plaintiff settled its claims against the first and second defendants and agreed to the dismissal of its claims against them. In addition to the claims that the Windbox grazing licenses had been renewed,[2] the claims against the first and second defendants included serious allegations of misleading or deceptive conduct on the part of Central Land Council (CLC) officers[3] and claims that the CLC was complicit in Mr Leslie’s contraventions of the Corporations Act 2001 (Cth). The settlement of the claims against the first and second defendants occurred after all of the evidence had been heard and after Windbox and JACT had filed their closing written submissions. The main focus of the closing submissions and hence of the Court’s reasons and decision in Windbox (No 3) was the damages claims against the third, fourth, and fifth defendants based on the conduct of the fourth defendant, Mr Leslie. Indeed, most of those claims were a fundamental part of the plaintiff’s claims against all five defendants from the outset and involved most of the evidence at trial, particularly the oral evidence.
Principles regarding indemnity costs
The principles regarding the awarding of costs on an indemnity basis have been discussed in numerous cases. They are conveniently set out in the judgment of Blokland J in Laminex Group Pty Ltd v Catford (Costs)[4] particularly at [8] – [11].
At [8] of Laminex, her Honour referred to the discussion by Riley CJ (as he was then) in BAE Systems Australia Ltd v Rothwell,[5] including his Honour’s repetition of the well-established principle that there must be some special or unusual feature in a particular case for indemnity costs to be awarded.[6]
In BAE Systems, Riley CJ had gone back to a number of well-known authorities including the decision of Sheppard J in Colgate-Palmolive Company v Consumers.[7] His Honour gave a number of examples of circumstances where indemnity costs may be ordered, including: where a party has pursued a matter which, on proper consideration, should have been seen to be a hopeless case; or where there was an undue prolongation of the case by groundless contentions.[8]
At [9] of Laminex, Blokland J also referred to the judgment of Mildren J in BAE Systems where his Honour said:
The general rule is that, whether or not to order taxation on the basis of indemnity costs is in the discretion of the Court. However, the exercise of the discretion to order costs over and above the ordinary is exceptional, usually reserved for cases where the losing party has been engaged in unmeritorious, or deliberate or high-handed or other improper conduct, such as to warrant the Court showing its disapproval and, at the same time, preventing the successful party being left out of pocket.[9]
Her Honour then referred back to the decision of Sheppard J in Colgate-Palmolive where his Honour talked about other examples such as: where there had been allegations of fraud where the person making the allegations knew them to be false; where there was misconduct that caused loss of time to the court; and where proceedings were commenced or continued for some ulterior motive or in “wilful disregard of known facts or clearly established law”.[10]
In Colgate-Palmolive Sheppard J identified circumstances where the discretion to award indemnity costs has been exercised. At 233 his Honour said:
I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in I-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise.
Blokland J, in Laminex, also referred to the commentary in Grant on Civil Procedure, where the author, now the Chief Justice, referred to cases where proceedings had been continued by a party in “wilful disregard of the known facts or clearly established law”, or if a litigant properly advised should have known it had no chance of success.
Counsel for Windbox also referred to a decision in 2001 of Martin CJ in Golotta v Incroft Pty Ltd & Anor[11] where, after referring to the guidelines and principles outlined by Sheppard J in Colgate-Palmolive, his Honour said:
The second defendant refers particularly, however, to “particular misconduct that causes loss of time to the court and to other parties”.
I am not satisfied that there has been any relevant prolongation in this case beyond that which will be occasioned by the present adjournment. Nor do I consider that there has been any litigious misconduct causing loss of time. What there has been constitutes a common enough feature of civil litigation in this Court, namely late amendment to pleadings and failure to comply with procedural rules and orders.
Regretfully, there is nothing in those defaults which carry the case into the accepted realms of being particular, special or unusual or so as to amount to misconduct in the relevant sense. I do not suggest that the category of cases in which an indemnity might be ordered is closed, but feel constrained by the ordinary orders made in this Court. Justice Sheppard was of the view that that could only be altered, in circumstances such as have arisen in this case, by the Court of Appeal or amendment to the rules (p 233).
[Emphasis added by plaintiff’s counsel]
In this jurisdiction, as in others, there are rules and practice directions that relate to or contemplate the awarding of indemnity costs. Consequently, a court might award indemnity costs where a party has refused to accept an offer of compromise that would have left that party with a more favourable outcome[12], or where a party has failed to comply with rules, orders[13] or practice directions, such as Practice Direction No. 6 of 2009 (PD6)[14].
Parties’ submissions
Counsel for JACT identified the following matters which together justify an order for indemnity costs for the entire proceedings:
(a)Windbox “sitting on its rights” by failing to take any action for more than two months after the CLC advised Windbox that the traditional owners had decided to grant the grazing licenses to someone else (on 29 June) by which time those licences had already been duly executed (on 23 and 29 August).[15]
(b)Windbox’s failure to comply with PD6.[16]
(c)Windbox’s making of hopeless claims which should never have been made, namely:
(i) seeking the interlocutory injunction and challenging the validity of the grants of the grazing licenses despite the indefeasibility provision in s 19(6) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA);[17]
(ii)    relying on the contention that the King family were the traditional owners of the relevant land, a contention that was wrong and was subsequently withdrawn;[18]
(iii) the allegations of misconduct, some of a criminal nature, on the part of Mr Leslie, raised after commencement of the proceedings, in order to bolster Windbox’s “hopeless case”, namely that Mr Leslie was misusing his position as an officer or employee in order to get the grazing licenses for himself;[19]
(iv) Windbox’s failure to accept the significance of s 19(6) of ALRA;[20]
(v)     Windbox’s pursuance of its claims based on improper use of information;[21]
(vi)   the Vagg conspiracy.[22]
(d)Windbox’s serious allegations of misconduct against others, namely:
(i)   Mr Leslie, noted in [13](c)(iii) above;[23]
(ii)    Ms Wilkie and Ms McIntosh, which were either unfounded or abandoned and should never have been made;[24] and
(iii) unidentified employees of the CLC and an aboriginal man RR.[25]
(e)Windbox’s unsuccessful attempts to amend the statement of claim:
(i) on 11 February 2019 to introduce new allegations of serious misconduct against Mr Leslie, unidentified employees of the CLC and an aboriginal man RR, in a further attempt to give Windbox a basis for avoiding s 19(6) of ALRA;[26]
(ii)    shortly before the commencement of the trial, to introduce new claims including claims of breach of fiduciary duty.[27]
(f)Windbox’s attempts to avoid the Court making findings concerning the validity of the grazing licenses following Windbox’s resolution of its claims against the first and second defendants.[28]
(g)Repeated late compliance or non-compliance with rules and orders[29], including Windbox’s:
(i)   breach of its discovery obligations;
(ii)    sworn reliance on accounts later denied by Mr Dodd;
(iii) late provision of witness affidavits, submissions and late filing of an application for the issue of subpoenas;
(iv)   filing of unsigned and incomplete documents, and failure to take out orders;
(v)     unreasonable refusal to agree orders;
(vi)   multiple failed attempts to introduce a trial bundle after the trial had commenced and without discussing and agreeing its contents with the defendants.
Counsel for the plaintiff referred to Martin CJ’s reference to “common enough” features of civil litigation in Golotta quoted in [11] above and submitted that:
6. It will be a “common enough” situation,[30] in a post-trial review of the evidence led, or the positions taken, by an unsuccessful party, to be able to be critical of forensic decisions made at different stages of a vigorously-contested trial. For example:
6.1.parties may have resisted the efforts of their opponents to gain access to relevant documents;[31]
6.2.offers to compromise or settle or to mediate may have been rejected;[32]
6.3.applications may be have been unsuccessfully made, but for proper forensic purposes;
6.4.evidence sought to be led may have been ruled to be irrelevant, or too late;
6.5.positions may have changed, or become refined or focussed, sometimes as a result of evidence being produced during the trial;[33]
6.6.claims may have been made that are later either abandoned or compromised;[34]
6.7.evidence that has been marshalled, or arguments prepared to meet these claims, may have been rendered unnecessary;
6.8.challenges to an opponent’s witnesses may fail;
6.9.a party’s own witnesses’ evidence may have been rejected, or even disbelieved; or
6.10.parties’ motives may have been criticised or impugned.
7. These features of a losing party’s case are not “special” or “unusual” in the ordinary course of civil litigation, still less so in the context of an expedited trial following an urgent interlocutory injunction. The JACT Defendants’ criticisms also fail to have regard to the particular practical difficulties that the Plaintiff experienced in attempting to urgently marshall anthropological evidence in support of the claims they wished to agitate. It cannot be said that it was not a proper course for the Plaintiff to attempt to pursue those claims.
Windbox “sitting on its rights” and not complying with PD6
JACT contended that Windbox “sat on its rights” and JACT was unfairly forced to agree to the interlocutory injunction because it was too late for the cattle to be safely mustered and relocated. I disagree with this contention and the implication that Windbox deliberately failed to complain or take action earlier in order to somehow obtain an inappropriate advantage. To the contrary it would seem that it was Windbox who was and would have been disadvantaged by not seeking interlocutory relief before the grazing licenses were executed and the indefeasibility provisions coming into play. Had that occurred it is likely that injunctive relief would have been granted to preserve the status quo, including the retention of the cattle on the land. Whilst I do think that Mr Dodd was tardy in taking any action before he did it seems that some time may have been lost while he was in the process of changing solicitors and having to properly instruct new solicitors to act for Windbox and then obtaining advice from counsel as to appropriate remedies.
JACT also contended that had Windbox approached the parties earlier, and complied with PD6, particularly before the grazing licenses were executed, the whole dispute might have been resolved. I think that this would have been very unlikely. It was very clear, at that time, indeed during the whole of the trial and until 1 May 2019 when JACT terminated its grazing licenses, that both parties were determined to hold the grazing licenses. It was also clear that Windbox would pursue the damages claims and that the defendants would resist those claims. I do not consider that these matters amounted to the “loss of a reasonable opportunity to resolve the whole matter and to avoid the court proceedings in their entirety”[35] or that the proceedings would have taken a substantially different course such that “the entire complexion of the litigation would have been different.”[36]
Commencing and continuing hopeless claims
Windbox relied particularly on the following statement by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd[37] at 401:
I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity costs”, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
Counsel then referred to the example given some years later by Sheppard J in Colgate-Palmolive of indemnity costs being payable where a claim is commenced or continued in “wilful disregard of known facts”.[38] Fountain was a very unusual case and is readily distinguishable from the present matter. In that case, the applicant had joined the second respondent as a respondent in the proceedings and ultimately called no evidence against him. In the meantime the High Court had ruled on a particular issue as a result of which it was clear that the applicant’s action against the second respondent was no longer tenable. Notwithstanding that decision of the High Court the applicant continued with its claim against the second respondent. Hence Woodward J’s “presumption” that the claim was continued for some ulterior motive or because of some wilful disregard of the clearly established law. Accordingly, his Honour awarded the second respondent indemnity costs, but only for costs incurred subsequent to the High Court’s decision.
I do not consider that the present matter was commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. As I have already noted, Windbox’s primary aim was to secure the grazing licenses so that it could continue the business which it had conducted on the land for well over 10 years. If it was not able to achieve that, its other remedy was to seek compensation from Mr Leslie and others who it considered was responsible for Windbox not securing the licenses.
Mr Dodd needed to act quickly to seek injunctive relief and to commence and litigate the proceedings earlier than would otherwise have been prudent, relying upon the limited materials and evidence then available. Those with the most relevant knowledge of the events which turned out to be critical, namely the events of January and early February 2018 were Mr Leslie and Mr Vagg, and perhaps Mr Cole. However, it is clear that Mr Dodd was not going to be receiving any assistance from Mr Leslie or Mr Vagg, and it is apparent that he had parted ways with Mr Cole who had been Windbox’s solicitor for many years. Apart from whatever documents were then available to him, Mr Dodd was aware of Ms Dianne King’s assertions concerning the representation of traditional owners at the consultation meetings in June 2018, and of problems on the Station reported to him by the new station manager, Mr Cann.

In the circumstances, I do not think that Windbox was at fault in commencing the proceedings as early as it did. Nor can it be unduly blamed for seeking to change its case as further evidence came to light, some during the discovery process (including during the trial) and some from witnesses such as Ms King when she came to swear her affidavit.
In relation to the “hopeless claims” referred to in [13](c)(i), (ii) and (iv) above I can understand why Windbox did apply for the interlocutory injunction relying upon such information as it then held. This included assertions, presumably based upon what some members of the King family had said including to the CLC on 10 July 2018, that the consultation requirements of ALRA had not been complied with because traditional owners had not been duly consulted. Windbox and its advisors may also have thought that Windbox had an arguable case that its grazing licenses were still in effect as having been renewed, despite s 19(6) of ALRA.[39]
Notwithstanding that (in hindsight) Windbox should have sought injunctive relief earlier and before the fresh grazing licenses were duly executed, it acted reasonably quickly when it did, to seek relief prior to the expiry of the termination notices that required it to remove the cattle from the land. Also, at that early stage, those acting for Windbox were still collecting information including from the CLC regarding Mr Leslie’s applications for the grazing licenses, the meetings and traditional ownership of the relevant land. Those advising Windbox would have been in a difficult position deciding when to apply for the interlocutory relief whilst important facts were still being ascertained.
The factual uncertainties confronting Windbox became more complicated once Ms King deposed that she was not in fact a traditional owner of all of the relevant land. It then became necessary and appropriate for those advising Windbox to make additional enquiries, including seeking advice from an anthropologist, as to the important issue of traditional ownership. There was no wilful disregard of known facts. Moreover, there is no suggestion that JACT embarked upon any such fact-finding exercise and incurred unwarranted significant costs as a result of any of that. Rather, JACT was able to rely upon the evidence held and adduced by the CLC regarding traditional ownership and regarding its consultations with the traditional owners when the grazing licenses were discussed.
I agree that s 19(6) of ALRA posed a real problem for Windbox, and that Windbox continued to challenge the validity of the JACT licenses, notwithstanding its unsuccessful attempt to amend the statement of claim to allege fraud. However that challenge did not occupy much time in terms of evidence. I reject JACT’s reliance on the proposition that “Windbox pressed its challenge to the validity of the JACT licenses to judgment”.[40] It was clear from the time when Windbox settled its claims against the first and second respondents that it was no longer challenging the validity of the licenses. JACT insisted that the judgment expressly deal with that issue in order to shore up its claim for damages in relation to the interlocutory injunction. Windbox did not challenge JACT’s submissions on that issue.
In relation to Mr Leslie’s allegedly improper use of information when he applied for the JACT grazing licenses referred to in [13](c)(v) above and the “Vagg conspiracy” referred to in [13](c)(vi) above, JACT refers to various parts of the Windbox (No 3) where the Court expressed views critical of those parts of Windbox’s case. This includes the Court’s conclusions to the effect that Windbox had not adduced evidence sufficient to enable those important inferences to be drawn.
Counsel for Windbox referred to a number of decisions cautioning against characterising a party’s case as “hopeless” where such a characterisation can only be made with the benefit of hindsight and the written reasons of the court, particularly after a complex trial. In Steicke v Pederick (No. 2)[41], Kelly, Nicholson and Lovell JJ said, at [14]:
It is perhaps not difficult, with the wisdom of hindsight and the benefit of the Court’s reasons, to characterise the applicant’s position as hopeless. However, that fact alone does not necessarily justify a departure from the usual order to award costs on a party and party basis.
Counsel for Windbox also referred to Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd[42], where Woodward J declined to order indemnity costs because it could not be said that the making of fraud and conspiracy allegations was improper, in light of how the facts must have appeared to the plaintiff at the time. At 178:
In the present case I am unable to say that the making of fraud and conspiracy allegations was improper, given the facts as they must have appeared to Phillips. In short, his agency business was taken over by a company which had previously been in a position akin to a sub-agent, following direct negotiations with his principal of which we was not aware; and then most of his staff left him and joined the other company, with which they had previously had dealings as his employees. It is understandable that he should have suspected double-dealings in such circumstances, even though the evidence eventually made it clear that the applicants had done nothing unlawful and the former employees were blameless.
[Emphasis added by Windbox’s counsel]
In response counsel for JACT contended that Windbox’s difficulties in relation to its claim that Mr Leslie had improperly used information about Mr Dodd’s decision to agree to the terms previously proposed by the traditional owners were plain and obvious at all times. I disagree. Rather, some of the documentary material, including material only discovered late in the proceedings such as that relating to Mr Leslie’s discussions with Mr Spazzapan, may have supported Windbox’s contentions depending upon answers given by important witnesses such as Mr Leslie, Ms Rowbottom and Mr Spazzapan in cross-examination.
Allegations of fraud and misconduct
In relation to Windbox’s allegations of misconduct against others, referred to in [13](d) above, counsel for Windbox conceded that Windbox “made (or attempted to make) allegations of fraud” when it sought to amend its statement of claim to allege fraud on the part of RR. But counsel contended that neither that allegation, nor the other allegations of misconduct, was made with knowledge of the falsity or irrelevancy of the allegations. Counsel for Windbox referred back to the examples given by Sheppard J in Colgate-Palmolive noted in [8] and [9] above, and also to the following passage in Fountain that Sheppard J had cited as one of the authorities for his example regarding allegations of fraud. In Fountain, Woodward J said, at [21]:
It is sometimes said that [special] costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court’s discretion – for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties …[43]
In reply, counsel for JACT pointed out, and I accept, that the discretion to award indemnity costs does not require proof that the delinquent conduct in issue was deliberate and knowing[44] and that the discretion may also be exercised where allegations of fraud are made without a proper evidentiary basis. Counsel quoted the following passage from Law of Costs (4^th Edition) by Dal Pont at [16.63]:
Special costs have been ordered in cases where a litigant makes and persists with allegations of fraud, or other allegations of improper conduct seriously prejudicial to the character or reputation of a party, which ultimately prove unfounded. This is almost an invariable outcome where the litigant knew or should have known that the allegations were false or unsupportable. It reflects the notion that a person should not allege fraud or other improper conduct without a proper evidentiary foundation.
The allegation of fraudulent conduct, primarily on the part of RR, was not pursued after I refused leave to amend the statement of claim on 22 February 2019.[45] That allegation had only been raised shortly before that. As far as I know RR had never been told of the allegation. The allegation to the effect that RR was not a traditional owner seems to have been based on assertions by some other Aboriginal people to that effect.[46] I did not and cannot find that Windbox “knew or should have known that that allegation was false or unsupportable”. The allegation was relevant, to the indefeasibility issue. Because the allegation could not be pursued there was little resulting additional delay or costs that would justify a special costs order in relation to that allegation.
The other allegations referred to by JACT, and noted in [13](d) above, were of improper conduct or misconduct, as distinct from allegations of fraud. Counsel for JACT contended that “the making of allegations of serious misconduct without a proper evidentiary foundation is also a well-established basis for the award of indemnity costs.”[47]
As authority for that proposition counsel cited [12] of the Queensland Court of Appeal’s decision in Mango Boulevard Pty Ltd v Spencer.[48] However, that passage then does not support JACT’s contention. That decision related to an unsuccessful appeal where the appellant had asserted a number of grounds of appeal alleging serious misconduct on the part of the appellant that had not been raised during the trial. Shortly before the hearing of the appeal counsel for the appellant abandoned most of those grounds. The Court of Appeal had dismissed the appeal and was considering the successful respondent’s application for indemnity costs. The Court concluded that there was no reason to conclude that the appellant’s conduct in pursuing those grounds which were later abandoned fell within the scope of the conduct discussed in the cases and in particular in Colgate-Palmolive. The Court concluded, in [12], that:
As a general proposition, appellate courts are wary of penalising parties for the abandonment of grounds of appeal. … Caution must be exercised before orders are made which would deter parties and their advocates from acting in this way.
While the allegations against Ms Wilkie and Ms McIntosh would have been of considerable concern to them and the CLC, and would have resulted in them incurring additional costs, these were issues primarily concerning the first and second defendants and their lawyers. Those allegations and circumstances would have been subsumed in whatever settlement was reached between Windbox and the first and second defendants, and did not require any further attention by JACT for their lawyers.
In relation to the misconduct allegations referred to in [13](c)(iii) above, counsel for Windbox points out that none of the allegations were found to have been made in the knowledge that they were false. The high-water mark of the JACT Submission in this regard relies upon the Court’s observation at [328] of Windbox (No 3):[49]
Counsel for JACT submitted that the allegations against Mr Leslie were fabricated by Mr Cann and Mr Dodd in order to deflect criticism of them for their own misconduct, which I have summarised in [325] above. There is considerable force in that submission.
[Emphasis added by Windbox’s counsel][50]
Windbox did have some evidence, albeit weak, in support of a number of those allegations. Most of the allegations were based upon inferences drawn and opinions formed, including by some experts, following observations by Mr Cann. Although I rejected that evidence, much of it because I preferred Mr Leslie’s evidence where it differed from that adduced by Windbox, it does not follow that there was not a proper evidentiary basis for the allegations to have been made. Despite my acknowledgement that there was “considerable force in JACT’s submission” I did not make a finding of actual knowledge of falsity or other relevant misconduct by Mr Dodd or Mr Cann in relation to these allegations.
The making of these allegations asserting misconduct does not justify an award of indemnity costs.
Particular misconduct causing loss of time to the Court and or the parties
In relation to the various contentions by JACT summarised in [13](e),(f) and (g) above, the views expressed by Martin CJ in Golotta are particularly relevant.[51] So too are the following observations by Gray J (with whom Carr and Goldberg JJ agreed) in the widely-cited decision of Hamod v New South Wales[52], at [20]:
Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order was made to have subjected the innocent party to the expenditure of costs.
[Emphasis added by Windbox’s counsel]
I accept the contentions made by counsel for Windbox at [6] of its written submissions quoted in [14] above. I also accept that those features of a losing party’s case are not “special” or “unusual” in the ordinary course of civil litigation, still less so in the context of an expedited trial following an urgent interlocutory injunction. That is not to condone or excuse failures to comply with Court rules, orders and procedures, but to acknowledge that indemnity costs are not designed to punish the losing side. Such failures are usually accommodated by costs orders and adjournments if required. This occurred in the present matter, often by consent. Failures such as these are “common enough” features of civil litigation.
Similarly, it is not uncommon for amendments to be sought, including to add a new cause of action or provide additional particulars. Again such applications are routinely dealt with, as occurred several times in the present matter, by the court weighing up relevant factors such as prejudice to the parties and whether such prejudice can be met by an adjournment and costs and the other matters discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University[53].
Ultimately the present matter was able to be conducted reasonably quickly and efficiently, notwithstanding the need for some expedition due to the situation of the cattle, and notwithstanding the considerable evidentiary difficulties for Windbox without the assistance of those with greatest knowledge of the relevant facts, such as Mr Leslie, Mr Vagg and perhaps, Mr Cole. Windbox was not responsible for the fact that the hearing could not be completed within the limited time available to the Court during the special sitting in Alice Springs, nor for the hearing having to move to Darwin to suit the Court, nor for Mr Spazzapan having to be called later for cross examination on his important conversation with Mr Leslie on 7 January 2018. There was no undue delay on the part of Windbox.
Nor do I consider there was anything untoward about Windbox’s attempts to avoid the Court making findings concerning the validity of the grazing licenses. As far as Windbox was concerned that question was no longer a relevant issue in the proceedings. Moreover Windbox did not dispute JACT’s contentions on that issue.
Conclusions
In my opinion, none of the matters asserted by JACT, individually or collectively, are such as to persuade me to exercise the Court’s discretion to award indemnity costs. There were no special or unusual features of the kind referred to in the authorities. Rather the circumstances were such as would be commonly encountered in litigation such as this, particularly in the circumstances confronting Windbox when it needed to take urgent action in order to avoid having to remove its cattle at the end of the dry season.
Accordingly, I dismiss the third, fourth and fifth defendants’ application for the plaintiff to pay their costs on an indemnity basis.
I order the third, fourth and fifth defendants to pay the plaintiff’s costs of this application.
I certify that the matter was fit for two counsel.

--------------------------

[1] [2020] NTSC 21.

[2] Statement of Claim at [7] – [27].

[3] Statement of Claim at [49].

[4] [2019] NTSC 3 (Laminex).

[5] [2013] NTCA 3; 275 FLR 244 (BAE Systems).

[6]BAE Systems at [26].

[7][1993] FCA 801; 46 FCR 225 (Colgate-Palmolive).

[8] BAE Systems at [26].

[9] BAE Systems at [85].

[10] Colgate-Palmolive at 233-234; Laminex at [10].

[11] [2001] NTSC 90 (Golotta).

[12] See for example Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd (No. 2) [2017] NTSC 25 (Ceccon Transport) (Hiley J) at [54] – [65], Simonetto and Simonetto v Dick [2014] NTCA 4 and Spry v McKenzie (No. 2) [2019] NTSC 57 (Barr J).

[13] In relation to discovery obligations see for example Ceccon Transport at [47] – [53].

[14] See discussion in Spadaccini v Grice [2012] NTSC 41; 32 NTLR 1 (Barr J) at [37] – [47] and Ceccon Transport at [20] – [43].

[15] JACT Submissions at [16].

[16] JACT Submissions at [17].

[17] JACT Submissions at [18].

[18] JACT Submissions at [19] – [20].

[19] JACT Submissions at [21] – [23].

[20] JACT Submissions at [25].

[21] JACT Submissions at [26].

[22] JACT Submissions at [27].

[23] JACT Submissions at [21] – [23] and [28].

[24] JACT Submissions at [24].

[25] JACT Submissions at [28].

[26] JACT Submissions at [28].

[27] JACT Submissions at [29].

[28] JACT Submissions at [30].

[29] JACT Submissions at [31].

[30] To adopt the expression used by Martin CJ in Golotta (at [32]).

[31] Such as occurred in relation to the Plaintiff’s attempts to access the CLC documents concerning its meetings with Traditional Owners.

[32] Such as the Plaintiff’s unsuccessful attempts to engage its opponents in a pre-trial mediation on the issue of the identification of the relevant Traditional Owners.

[33] Such as the JACT Defendants’ communications with their solicitor in January 2018, over which legal professional privilege had been erroneously claimed.

[34] Such as those made by the Plaintiff against the CLC Defendants.

[35] Cf JACT Submissions at [17] referring to Ceccon Transport at [42] – [45].

[36] Ceccon Transport at [38].

[37] (1988) 81 ALR 397 (Fountain).

[38] At 256-7. See too [8] above.

[39] See for example the Statement of Claim at [7] – [27].

[40] JACT Submissions at [25].

[41] [2020] SASCFC 13 (Steicke).

[42] (1986) 71 ALR 287; 10 FCR 177.

[43] Citing His Honour’s earlier decision in Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178.

[44] See e.g. Cleary Bros (Parramatta) Pty Ltd v Commonwealth Bank of Australia [2009] ACTSC 72 at [32] per Penfold J, and G E Dal Pont, Law of Costs (4th Edition) at [16.46].

[45] See Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2019] NTSC 47 (Windbox (No 1)).

[46] Windbox (No 1) at [30].

[47] JACT Submissions at [12].

[48] [2008] QCA 392 at [12].

[49] JACT Submissions at [22].

[50] Windbox Submissions at [13].

[51] See passage quoted in [11] above.

[52] [2002] FCA 424; 188 ALR 659.

[53] [2009] HCA 27; 239 CLR 175.