Barker J held that there should be no order for costs in each of the proceedings.
Barker J previously rejected two judicial review applications made in respect of a decision not to register an Indigenous Land Use Agreement under the Native Title Act 1993 (Cth) (NTA). This present judgment concerns the costs of those proceedings.
Barker J notes that ordinarily, in ‘challenging the exercise of a statutory power under the NTA, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party’ (Corunna v South West Aboriginal Land and Sea Council and Another (No 2) (2015) 235 FCR 53). His Honour considered submissions from all parties regarding principles relevant to the exercise of the costs direction. It was agreed upon by all parties that s 85A did not have direct application to the exercise of the costs discretion, as Administrative Decisions (Judicial Review) Act 1977 (Cth) proceedings are not directly relevant to native title. The arguments made against an order for costs included that regard should be given to the ‘spirit’ of s 85A, that there is something in the nature of public interest litigation in these review proceedings, that the substantive issues were important and complex, and thus should be considered in the same light as proceedings under which s 85A of the NTA would apply.
Considering the subject matter, issues of construction and factual circumstances, his Honour agreed with the majority of these arguments, holding that the ‘subject matter of the litigation was very closely related to the administration of the NTA, and indeed, arose in the course of the administration of the NTA’ (at [23]). However, his Honour noted that rather than appealing to the ‘spirit’ of s 85A, the decision to not order costs ‘simply involves a judicial exercise of the s 42 of the FCA Act costs power having regard to all relevant factors’ (at [29]).