McKerracher J
In this matter, McKerracher J ordered that the applicant, Ms Bropho, pay the costs of the first respondent, the City of Perth, following the dismissal of Ms Bropho's application for a declaration that the Local Government Property Local Law 2005 (WA) did not apply to native title claimants: Bropho v City of Perth [2016] FCA 1098.
The City of Perth sought its costs. The State of Western Australia did not seek a costs order.
Ms Bropho argued that there should be no costs order as:
the proceedings dealt with the meaning of important provisions of the Native Title Act 1993 (Cth) (NTA);
it is open to the Court, in relation to the exercise of the discretion conferred by s 43 of the Federal Court Act 1976 (Cth) to take the ‘spirit’ of s 85A NTA into account. In exercising that discretion, it is appropriate to take into account all relevant matters including the nature of the proceedings, whether important or novel questions are being responsibly pursued and the desirability of resolution of those questions without costs being imposed adversely as a penalty.
the non-extinguishment argument raised in her originating application was novel, potentially important as numerous portions of land in Western Australia were vested in similar terms, and Ms Bropho stood to gain nothing personal from the outcome.
Following the reasoning of Barker J in Corunna v South West Aboriginal Land and Sea Council (No 2) [2015] FCA 630, McKerracher J held that s 85A NTA did not apply and, even taking the ‘spirit’ of s 85A into account, His Honour was not persuaded that there was any good reason not to make a costs order because the application did not concern the correct interpretation of the NTA, was not brought in the public interest and Ms Bropho’s case had no reasonable prospects of success due to the prior extinguishment over the area and did not fail simply on a technicality.