North, Barker, Mortimer JJ
In this matter, North, Barker and Mortimer JJ ordered the State of Western Australia and the South West Aboriginal Land and Sea Council (SWALSC) to pay the respective costs of the applicants in relation to the McGlade v Native Title Registrar litigation (WAD137/2016, WAD138/2016, WAD139/2016, WAD140/2016).
The applicants submitted that the usual rule that costs follow the event should apply as they were successful at trial, and s 85A of the Native Title Act 1993 (Cth) (NTA) did not apply to the proceedings. That provision alters the usual rule concerning costs for proceedings commenced in the Federal Court relating to native title. It provides that, unless the Court otherwise orders, each party to a proceeding must bear their own costs. The Court accepted that the proceedings are not directly covered by s 85A of the NTA, as they were applications made in the High Court for writs of prohibition, as well as for declaratory relief.
SWALSC contended that the significant body of Noongar persons who supported its position on the South West Settlement Indigenous Land Use Agreements (ILUAs), and the public importance of the interpretation of the ILUA provisions, supported the finding that there should be no costs order. The Court held that despite the considerable public importance in the interpretation of the ILUA provisions of the NTA, the applicants ‘nonetheless took steps to obtain legal advice, commence proceedings in the High Court relying on the terms of s 75(v) of the Constitution and s 39B of the Judiciary Act, and but for their determination in bringing and maintaining the proceedings, would not have been able to vindicate the rights and interests they asserted’ at [13].
The Court agreed with the submission made by the State that the applicant in each of the four proceedings should not have the benefit of individual costs orders. Their Honours held that acknowledging that costs of preparation may be different in each proceeding, and having regard to the differing factual backgrounds, some allowance needs to be made for some separate costs in each proceeding, although modified to reflect that the four proceedings were heard together. The Court held that there should be one costs order covering all four proceedings, broken up as needs be to reflect any distinct costs incurred in preparation.
The Court ordered the parties to file a minute of proposed costs orders that reflect the judgement.