Reeves J
This matter concerned an administrative appeal by QGC under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) of the Native Title Registrar’s decision not to register an ILUA between the QGC and the Bigambul native title claim group under the Native Title Act 1993 (Cth) (NTA).
Background
The Registrar’s decision not to register the ILUA was due to an objection raised by the Chairman of the Kamilaroi Land Trust, Mr Weatherall, and NTSCORP, the Native Title Representative Body for NSW, on the basis that the ILUA covered lands and waters over which the Kamilaroi/Gomeroi People claimed native title. The subject lands and waters were entirely in Queensland and were included in the claimant’s native title claim filed in 2009.
When the appeal was filed, the Registrar indicated that it did not wish to actively participate in the appeal proceedings. This meant that there was no opposing party to QGC’s appeal, as QGC and the claimant shared the same position in relation to having the ILUA registered. As such, the Court joined NTSCORP and Mr Weatherall, in part, as contradictors to QGC’s and the claimant’s cases. After being joined, NTSCORP maintained an active role the proceedings.
Decision
Ultimately, the Court set aside the Registrar’s decision, and ordered that the ILUA be registered.
Cost Orders
QGC and the claimant sought cost orders against NTSCORP, contending that it was NTSCORP’s intervention that led to the Registrar’s decision not to register the ILUA and resulted in QGC and the claimant incurring substantial legal costs. QGC and the claimant also contended that as NTSCORP is a New South Wales body, it had no authority or obligation to intervene in the ILUA registration process because the relevant land was entirely in Queensland.
The claimant also noted that NTSCORP did not object to being joined and could have simply submitted to any orders of the Court, but it instead chose to have a full and active role in opposing QGC’s appeal. Therefore, the claimant contended that NTSCORP did not act purely as a contradictor in this matter, and as such, the 'spirit' of s 85A of the NTA, which provides that each party should bear its own costs, should not be applied.
NTSCORP opposed the cost application on the basis that it was joined by the Court to assist as a contradictor, and its involvement in the initial objection was pursuant to its statutory responsibilities under the NTA. NTSCORP also asked the Court to take into account the 'spirit' of s 85A of the NTA, even though it appeared to accept that s 85A did not strictly apply in the matter given it was not a 'proceeding' under s 81 of the NTA.
Decision on Costs
In finding for QGC and the claimant, the Court rejected the claim that NTSCORP acted purely as a contradictor in the proceedings, particularly given that NTSCORP indicated that it wished to participate in the proceedings to fulfill what it considered to be its statutory responsibilities under the NTA. The Court also agreed with QGC’s submission that NTSCORP was not obliged to discharge any statutory function under the NTA as the relevant land was entirely in Queensland, and under the responsibility of Queensland South Native Title Services.
The Court declined to apply s 85A on the basis that this matter was an administrative appeal and not a s 81 'proceeding', and because NTSCORP’s involvement in the matter was not purely as a contradictor or to fulfil a statutory obligation. For these reasons, and on the basis that NTSCORP’s objection to the registration of the ILUA was the original and direct cause of QGC and the claimant incurring legal costs in the proceedings, the Court ordered that NTSCORP pay the costs of QGC and the claimant in relation to the appeal.