Kourakis CJ, Gray and Stanley JJ
In this matter the Full Court of the Supreme Court of South Australia considered whether costs should be awarded to Straits Exploration (Australia) Pty Ltd and Kelaray Pty Ltd (Straits and Kelaray) following a successful appeal against a decision of the Environment, Resources and Development Court.
The respondents to the appeal were the Kokatha Uwankara Native Title Claimants. The Adnyamathanha people were named as respondents but did not appear at the appeal hearing.
A primary reason for allowing the appeal was the Judge’s misapprehension as to the nature of his jurisdiction and both parties had conducted the initial hearing on the basis that the Court was performing a judicial function (see Straits Exploration (Australia) Pty Ltd & Anor v Kokatha Uwankara Native Title Claimants & Ors [2012] SASCFC 121).
As awareness of this error arose during the appeal, the Court concluded that both parties should bear responsibility for the events that followed from the misapprehension. The Court also referred to s 16B of the Native Title (South Australia) Act 1994 (SA) (NTA (SA)) which provides that ordinarily each party bears its own costs to the extent that the proceedings involve a native title question.
The Court found that, although the proceeding was not under the NTA (SA) the principles of the legislation were relevant to the question of costs, native title considerations were at the forefront of the hearing and the Judge in the Environment, Resources and Development Court made no order as to costs, despite heavy criticisms of Straits and Kelaray.
Orders
No order as to the costs of the appeal and the judicial review proceedings.