On 7 December 2017 Rangiah J gave judgment in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464. In this proceeding, Rangiah J determined not to make orders as to costs of the application to replace the Gomeroi claim group applicant brought under s 66B of the Native Title Act 1993 (Cth) (NTA).
Rangiah J found no cause to exercise his judicial discretion and depart from the starting point in s 85A NTA that each party should bear its own costs: see Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163.
Section 85A NTA provides that (1) unless the Federal Court provides otherwise each party to a proceeding must bear his or her own costs. However (2) if the Court is satisfied that a party to a proceeding has by any unreasonable act or omission caused another party to incur costs in connection with the institution or conduct of the proceeding the Court may order the first mentioned party to pay some or all of those costs.
[4] The Full Court held in Cheedy that:
Section 85A(1) removes the expectation that costs will follow the event , but the Court retains its discretion as to costs under s 43 of the FCA Act;
the ‘unreasonable conduct’ of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the exercise of discretion in s 85A(1);
whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; and
it is not proper to use the power to award costs to punish either a successful or 4.unsuccessful party or as a deterrent to other would be applicants.
In this proceeding, the Court was not satisfied that there was conduct to justify an order for costs against the current applicant.
The unreasonable conduct issue
[6] The replacement applicant submitted that the current applicant had [7] unreasonably failed to adhere to the expectations of the claim group expressed by resolutions passed at the 2013 authorisation meeting. The Court found that NTSCORP may have been partly responsible for the current applicant’s failure to call claim group meetings by refusing to assist in facilitating the meetings.
The replacement applicant also submitted that unreasonable conduct of the current applicant caused unnecessary complexity and prolongation of the hearing. The replacement applicant relied upon:
the current applicant having raised new allegations shortly before the hearing;
the serving of written submissions in excess of the length permitted under orders made by the Court;
the making of allegations of misconduct against NTSCORP solicitor Mr Chalmers that were not sustained; and
the making of a number of technical and pedantic challenges to the conduct of the 2016 authorisation meeting.
The Court found that both parties had contributed to the complexity and length of the case. [8] –[10] In saying so, his Honour noted that the replacement applicant had filed an affidavit shortly before the hearing, without leave, which contained substantial new evidence that was rejected after lengthy argument, but later admitted by agreement of the parties. [9] In the circumstances the Court was not prepared to depart from the starting point that each partyshould bear its own costs and [11] there was no order made as to costs. Substantive cases must be considered in the light of the balance of convenience considerations set out above.