Reeves, Barker and Bromberg JJ
In this case, Reeves, Barker and Bromberg JJ refused to vary a 'no costs order' made in an earlier decision Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75 to include an order that NTSCORP Limited (NTSCORP) pay the Gomeroi people's costs of the appeal - see What’s New in Native Title - May 2016 for a summary of that case. The respondents were the Attorney General of New South Wales and NTSCORP Limited.
Issues
The key issues were:
Whether the Court's costs discretion is governed by s 85A of the Native Title Act 1993 (Cth) (NTA).
If so, whether NTSCORP performed “any unreasonable act” which caused the appellant to incur costs for the purposes of s 85A(2).
Whether, in relation to the appeal, this is a case where the usual principle, that costs follow the event, should not apply.
Reeves, Barker and Bromberg JJ found that s 85A of the NTA generally applied and no costs order should be made. This was because no costs order was made in the appealed orders, the orders resulted from the initiative of the primary judge and should not result in a costs order against NTSCORP and the appellant was wrong to claim that NTSCORP had made a “deliberate and intentional” decision to avoid the process provided by the NTA under s 66B to remove an applicant at a claim group meeting.
Furthermore, the question raised in the appeal related indirectly to the entitlement of a claim group to limit the authorisation of an applicant under the NTA and this raised a question of some potential significance to the administration of the NTA beyond the interests of the parties. These considerations led the appeal court to originally make no order as to costs and this remains the appropriate order.
The appellant’s application to vary the costs order made 30 May 2016 was dismissed.