North, Barker and White JJ
In this matter, North, Barker and White JJ considered whether the appellant, the Inman people native title claim group, should pay the costs of the first respondent, the State of Queensland in relation to the appeal brought on their behalf in Doyle on behalf the Iman People #2 v State of Queensland [2016] FCA 13.
On appeal, it was unsuccessfully argued on behalf of the claim group that s 8 of the Native Title (Queensland) Act 1993 (Qld) was invalid insofar as it purported to validate, with retrospective effect, the past extinguishment of native title over certain parcels of land in Queensland. The appellants sought to rely on the Metwally principle (University of Wollongong v Metwally (1984) 158 CLR 447) to argue that the extinguishing acts were invalidated by s 109 of the Constitution by virtue of their inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth), and it was not open to the State of Queensland to retrospectively validate those acts. North, Barker and White JJ dismissed the appeal, stating that the Metwally principle did not preclude the Queensland Parliament from enacting a law attaching legal significance to events in the past which had been invalid or ineffective at the time they occurred.
The State submitted that an order for costs should be made in its favour on the grounds that the appellant’s argument on appeal had been plainly untenable and by instituting and carrying on the appeal, the appellant had acted unreasonably and caused the State to incur unnecessary expense.
Their Honours determined that although in retrospect the case was not likely to be successful; they were not convinced that the appellant’s argument was so untenable that it was unreasonable for the appellant to pursue it. Their Honours noted that they were ‘conscious of the need to avoid the wisdom of hindsight when considering whether arguments on appeal which were unsuccessful should be regarded as untenable’ at [10]. The Court rejected the State’s submission that a passage in Gomeroi People v AttorneyGeneral of New South Wales (No 2) [2016] FCAFC 116 indicated that on an appeal, s 85A(1) of the Native Title Act 1993 (Cth) should be displaced and the ordinary rule that costs should follow the event should apply. The Court considered it appropriate that there be no order as to costs.