White J
In this matter, White J considered an application for a costs award brought by one native title applicant against another in relation to the conduct of its claim for a determination of native title. His Honour ultimately ordered that the Wunna Nyiyaparli applicant pay the costs of Nyiyaparli applicant incurred through the hearing of a separate question in relation to the membership of an apical ancestor.
The Nyiyaparli applicant contended that a costs order was appropriate because the Wunna Nyiyaparli applicant acted unreasonably within the meaning of s 85A(2) of the Native Title Act 1993 (Cth) in two respects: by making a claim that their ancestor was a Nyiyaparli person when there was no reasonable basis for such a claim; and by maintaining the claim, and therefore putting the Nyiyaparli applicant to the expense of participating in the separate question hearing, in circumstances in which the applicant did not substantively participate in and prosecute the claim.
Members of the Wunna Nyiyaparli claim group had been included in the Nyiyaparli claim group between 2001 and 2010. His Honour considered that the approach taken by the Wunna Nyiyaparli applicant was understandable having regard to evidence indicating that, at least in some respects, Bill Coffin Snr and his descendants had been treated as Nyiyaparli until the issue became acute in the context of native title proceedings. White J found it inappropriate to make a costs order in respect of this ground of the costs application.
On the second ground, White J held that the Wunna Nyiyaparli applicant did not participate cooperatively in the arrangements for the hearing of the separate question, did not attend directions hearings and ignored correspondence from the court and agents acting on behalf of the Nyiyaparli claim group. Furthermore, the Court found that the Wunna Nyiyaparli applicant failed to attend directions hearings, failed to attend case management conferences, failed to comply with the Courts orders, and did not advance any proper justification for this conduct.
On that basis, White J ordered that the Wunna Nyiyiarpali applicant pay the costs which the Nyiyaparli incurred in relation to the hearing of the separate question which they would not have incurred had the Wunna Nyiyaparli applicant informed the Court that they did not wish to participate in the hearing of the separate question.