Mansfield, Kenny, Rares, Jagot and Mortimer JJ
In this matter, the Banjima People sought an order that the State of Western Australia (State) pay their costs of the State's appeal against the native title determination in Banjima People v State of Western Australia [2015] FCAFC 84 which was dismissed. The Court ordered that each party bear their own costs of the appeal.
The Court had previously ordered the State to pay the costs of the Banjima People of an interlocutory application filed by the State after judgment on the appeal had been published, as it involved the Banjima People in unreasonable expenditure: Banjima People v State of Western Australia (No 2) [2015] FCAFC 171).
The current application related to the substantive appeal.
The Banjima People argued that the State should pay its costs in relation to the appeal on the basis that:
the State was unsuccessful;
the appeal was against a determination of native title;
several of the grounds of appeal involved issues of law and fact requiring consideration of a substantial portion of the large body of evidence before the primary judge;
one ground of appeal, which involved factual issues, was unmeritorious; and
one ground also lacked merit.
The Banjima People also noted that the State abandoned ground two at the hearing and withdrew ground five after the Banjima People had already filed submissions in respect of those grounds.
Consideration
The Full Court accepted each of these factors is relevant to the exercise of the costs discretion but noted that the State and the Banjima People both challenged the native title determination.
The Full Court considered that the fact that there were two appeals, heard and determined together, in which both parties challenged the same native title determination, is relevant to the discretion as to costs.
It was noted that as the State and the Banjima People both challenged the native title determination on multiple grounds, some of which were not pressed and others of which involved an unrealistic view on the part of both parties about the lack of advantage of the primary judge, it is apparent that the submissions for the Banjima People did no more than rely on the fact of the State’s lack of success.
Accordingly, the Full Court held that there is no principled basis identified by the Banjima People which weighs in favour of displacement of the usual position set out in s 85A(1) of the Native Title Act 1993 (Cth) and justifying the making of a costs order.
Orders
For these reasons, the Full Court considered that each party should pay its own costs.