Introduction
The applicant (McNamara) applied on behalf of the Barngarla People for a determination of native title under s 13 of the Native Title Act 1993 (Cth) (NTA). The Court previously ordered that this application be summarily dismissed under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) (FCR). In this case, the Court considered an application made by the State that the applicant pay its costs. With the agreement of the parties this case was decided on the papers.
State Submissions
The State submitted that the asserted factual basis for this claim was not materially different from Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 (‘Croft’). In Croft it was decided that the Barngarla People did not possess native title in the area south of Port Lincoln in South Australia. The State submitted the applicant refusing to withdraw the claim was an abuse of process and therefore costs should be awarded in their favour.
Principles
Under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) the Court has discretionary power to award costs. Additionally, s 85A(2) provides that if a party by any unreasonable act or omission causes another party to incur costs the Court may order the first-mentioned party to pay some or all of those costs. However, proof of an unreasonable act or omission is not an essential precondition to the discretionary power.
Decision
The Court accepted the State’s submissions and concluded that the applicant acted unreasonably within the meaning of s 85A(2) of the NTA in refusing to withdraw their claim. He noted that the order for costs can and should be made in the Court’s discretion under s 43 of the FCA Act, even if the applicant’s conduct did not meet the s 85A(2) description. The Court ordered that the applicant pay the State’s costs of preparing the submissions and affidavits associated with this application.