McKerracher J
In this matter McKerracher J ordered that the appellant pay the Nyiyaparli respondent’s costs of appeal and the objection to the competency of the appeal, in a lump sum of $14, 561.00.
In Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2017] FCA 1056 (Peterson No 1), McKerracher J upheld an application for the appeal’s summary dismissal on the basis of lack of competency. The Nyiyaparli people sought an order that the appellant pay the Nyiyaparli respondent’s costs of the appeal and objection to the competency of the appeal in the sum of $14,561.00, or, alternatively, for an order that the costs be taxed if not agreed. No submissions were filed by any other respondent and the appellant did not file any submissions in response.
The Court noted that, in accordance with Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635, the fact that the Nyiyaparli Respondent was represented by an ATSI representative body, did not preclude the award of costs [9].
The Nyiyaparli respondent submitted that the appellant had acted unreasonably as per s 85A(2) of the Native Title Act 1993 (Cth) in:
purporting to serve and proceed with an appeal which was back-dated and not filed within the required 21 days
purporting to serve and proceed with an appeal against an interlocutory order for which no leave had been sought or granted and would not have been granted because no substantial injustice would occur from refusal
purporting to serve and proceed with an appeal against an order removing them as respondents to an action which is not possible due to s 24(1AA)(b)(i) of the Federal Court of Australia Act 1976 (Cth)
putting the Nyiyaparli respondent to the expense of participating in the incompetent appeal and in having to lodge an objection to the competency of the appeal.
The affidavit of Cheryl Collins submitted a draft bill of costs outlining the costs incurred by the Yamatji Marlpa Aboriginal Corporation as legal representative of the Nyiyaparli Respondent. The lump sum for the order of costs may be made in accordance with rule 40.02(b) of the Federal Court Rules 2001 (Cth). His Honour noted that an order of lump sum costs was deemed to save the additional costs of taxation in Stock v Native Title Registrar (No 2) [2014] FCA 202.
The Court held that the success of the respondent was comprehensive, and upheld the validity of respondent submissions to varying degrees. Arguments on appeal were deemed to have no prospects of success and for the reasons outlined in Peterson No 1, appellant proceedings were before the primary judge were validly refused. The pursuit of appeal was rendered unreasonable and the Court held that the respondent should have costs awarded and that the costs sought were reasonable.