The Court ordered that each party bear its own costs of the application and the cross-claim.
On 30 November 2018, Banks-Smith J delivered primary reasons for judgment in these proceedings (see Ngarluma Aboriginal Corporation RNTBC v Ramirez [2018] FCA 1900). In that case, Ngarluma Aboriginal Corporation (NAC) was successful in seeking declaratory relief, whilst the respondents were unsuccessful in opposing that relief and in their cross claim. The question now arises as to who should bear the costs. The respondents submitted that NAC should pay the costs as:
the need for this proceeding was due to the conduct of NAC;
NAC is the party that sought relief and the respondents are acting as ‘necessary contradictors’; and
the respondents are acting as representatives of a larger group and thus acting in a ‘public interest character’.
Banks-Smith J states at [6] that the ‘jurisdiction to grant costs against successful parties ‘can rarely, if ever, be justified’’ (Scherer v Counting Instruments Ltd [1986] 1 WLR 615 622). Her Honour considers a number of authorities in which respondents have assumed a similar role of contradictor or acting in the public interest, as in this present case (Allseas Construction S.A. v Minister for Immigration and Citizenship (No 2) [2012] FCA 747; Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152; Qantas Airways Ltd v Cameron [1996] FCA 765; Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19). It appears that the greater the role of the respondent as acting for the public interest, the more inclined the Court was to order no costs, or discount the amount the respondent was required to pay.
Her Honour notes that in the present case, whilst NAC had full responsibility for bringing about these proceedings, NAC had acted appropriately in doing so. The respondents participated by consent. Her Honour also accepted that whilst their counterclaim had the potential to impact the position of hundreds of membership applicants, it was primarily brought to protect private rights, and thus cannot be characterised as being entirely in the public interest. Her Honour further noted that the participation of the respondents assisted her in ‘consideration of important issues as to the governance of NAC’ (at [12]).
Thus Her Honour considered the circumstances are not as such to require NAC as the successful party to pay the respondents’ costs. There is no order as to costs.